Part XIII 

Anti social behaviour

Introduction

                          13.1              A small number of occupiers, or members of their households, behave in an anti social way towards their neighbours. Although the numbers involved are small, the effect they have on the lives of those around them can be disproportionate. At its worst it can make life for the victims intolerable. In addition to the direct effect on other occupiers, anti social behaviour is socially corrosive. It can lead to a cycle of deterioration in the social and then physical condition of estates, particularly in areas of low housing demand, as occupiers vote with their feet and leave areas blighted by the anti social behaviour of the few.

                          13.2              In this Part we discuss

                          13.3              It is, perhaps, only comparatively recently that the housing world has woken up to the extent and seriousness of anti social behaviour by occupiers. The last few years have seen the gradual emergence of a consensus on the prevalence, seriousness and cost of anti social behaviour, articulated by, amongst others, the Social Landlords Crime and Nuisance Group,[1] the Cabinet Office Social Exclusion Unit[2] and the Labour Party.[3] We have already learned that it is a matter of the gravest concern to tenants’ groups.

                          13.4              We regard the issue as one of great importance, particularly for the management of social housing, which therefore justifies separate consideration within this consultation paper. It builds on the fundamental principle that occupiers – particularly of social landlords – who show they accept their responsibilities as occupiers acquire rights to security, whereas those who do not lose their rights to security.

                          13.5              The term “anti social behaviour” covers a disparate and broad range of behaviour ranging from the relatively mild, though annoying, tensions that can arise between neighbours to serious, violent and intimidatory behaviour, which makes the lives of those affected a complete misery.[4] Some forms of anti social behaviour, for instance noise nuisance, are closely associated with the occupation of the home. Other types of behaviour cause people to feel particularly stressed and insecure within their home, for example racist behaviour.

                          13.6              The legal framework is only a part, albeit an important part, of any strategy for dealing with anti social behaviour. It is also important that social landlords use the whole range of powers available to them to tackle anti social behaviour, and that effective schemes are developed for the rehabilitation of anti social occupiers. We are not the right body to seek to improve good practice, nor can we develop rehabilitative schemes. These are for Government and the wider housing world. The importance the Government attaches to both enforcement and rehabilitation is evidenced in the recent joint Department for Transport, Local Government and the Regions and Home Office consultation paper on anti social behaviour.[5]

                          13.7              However, any effective strategy needs the right legal basis. The proposals that follow have been informed by our understanding of some of the requirements for effective action to stop anti social behaviour. That understanding comes, in part, from the policy documents footnoted in this Part, but also from what we have learned from representatives of landlords and tenants in the course of the preparation of this paper. Their desired outcome is not to remove the anti social occupier, but to change behaviour. In this connection, we are impressed with the success claimed by Manchester City Council for the use of injunctions in changing behaviour.[6] Eviction is, in some senses, an admission of failure.

                          13.8              If eviction is necessary, then there are three reasons why, as far as possible, it should be swift and certain. First, once it has become clear that the occupier’s behaviour will not change, it is obviously desirable to stop it as soon as possible. Secondly, effective action generally relies on victimised occupiers having the courage to stand up to the perpetrators, including in court as witnesses. If the process itself is both quick and certain then the opportunity for intimidation of witnesses is minimised. Thirdly, effective action against anti social behaviour depends in part on securing the trust and support of the community. It is only if the landlord is trusted to take complaints seriously and prosecute them effectively that occupiers will turn to the landlord, rather than just move or retreat into private misery.

                          13.9              This Part considers what powers should exist to enable social landlords to deal with those types of anti social behaviour which impact upon the occupation of residential premises or the locality of the premises or the management of that premises. In many instances the criminal law provides a solution. However housing law must supplement the criminal law because of the different procedures and purposes of criminal regulation. In particular, requirements of the criminal burden of proof and the need for witnesses, whilst necessary for civil liberty purposes, can in practice limit an authority’s ability to intervene. Further, criminal sanctions are designed to punish the perpetrator and are not necessarily orientated towards either the protection of the victim[7] or the landlord’s property.

The current law

                      13.10              When the secure tenancy regime was devised in the Housing Act 1980 it provided a comprehensive system of security of tenure for local authority tenants, with no mandatory grounds for possession. At the time anti social behaviour was perceived as an individual problem which could be appropriately dealt with by means of the nuisance ground for possession, modelled on the discretionary ground available to private landlords. In the intervening period, the inadequacy of this mechanism has been revealed.

                      13.11              Part V of the Housing Act 1996 introduced a raft of measures including

                                                        (1)      a power for local authority landlords to let on introductory tenancies,[8]

                                                        (2)      the extension of the discretionary ground for possession available to landlords on the basis of nuisance or annoyance to neighbours,[9]

                                                        (3)      expedited notice for possession proceedings based upon those grounds,[10]

                                                        (4)      a new power of arrest for certain injunctions against breaches of a nuisance clause in an occupier’s agreement,[11] and

                                                        (5)      a new injunction and power of arrest for local authorities to restrain people other than their occupiers from anti social behaviour in the locality of local authority housing.[12]

Also relevant is the power available to a local authority under section 222 of the Local Government Act 1972, to take part in court proceedings – whether suing, prosecuting or defending – when it considers it expedient to do so for the promotion or protection of the interests of the inhabitants of its area.[13]

                      13.12              These provisions have been supplemented by other legislation,[14] including the Noise Act 1996, the Protection from Harassment Act 1997 and, most particularly, the anti social behaviour orders set out in section 1 of the Crime and Disorder Act 1998. Anti social behaviour orders can be obtained from the magistrates’ court by the police or the local authority[15] against a person aged ten years or over who has been behaving in an anti social manner and the order is necessary to protect others from further anti social behaviour. Breaches of the order are punished as criminal offences.

                      13.13              The strategic role of local authorities has been strengthened by section 6 of the Crime and Disorder Act 1998 which imposes a duty on local authorities – in partnership with the police, probation, health authorities and others – to produce and implement a local strategy for the reduction of crime and disorder.[16]

                      13.14              Further statutory innovations are contained in the Homelessness Act 2002, which requires local authorities to consider the impact of violence on an applicant for accommodation under the homelessness legislation, extending a similar provision which previously applied only to domestic violence. Thus a local authority will be potentially liable to house a person forced to leave a home because of anti social behaviour by others. In relation to the allocation of social housing, another section allows a local authority to decide that an applicant is ineligible on the basis of his or her unacceptable behaviour. The Act[17] amends Part VI and Part VII of the Housing Act 1996, which regulate the allocation of local authority housing and local authorities duties to the homeless. Local authorities are given the power to design their allocation schemes in such a way as to reduce the priority given to applicants who behave in an anti social manner. Finally, local authorities are not required to give any priority at all to applicants if they or members of their household are guilty of unacceptable behaviour, if, at the time the case is considered, they do not deserve to be treated as a member of a group of people who are to be given preference.

                      13.15              Even more recently, the Department for Transport, Local Government and the Regions and the Home Office have published a consultation paper outlining further suggested legislative changes to combat anti social behaviour.[18] The proposals in that paper, of course, would change the current law, rather than being applicable to our proposed new legislative scheme. We have, however, shared the ideas discussed in this Part with the Department, who have adapted some of them to the current law. As such, they feature in the joint consultation paper along with other ideas.

Which landlords?

                      13.16              Currently, legislation gives local authorities more powers to deal with anti social behaviour than it gives to other social landlords. Most of these powers belong to them as local authorities rather than as landlords.[19] However, local authorities also have powers as landlords to use introductory tenancy schemes, which are not available to other social landlords.[20]

Social landlords

                      13.17              We do not think that in this context the distinction between local authority landlord and other registered social landlords is generally justified, in so far as we are considering combating housing-related anti social behaviour. Both are social landlords, in the sense that they are providers of housing for a social rather than a commercial purpose, and as such have a general obligation to the community in which their housing is located. This is perhaps particularly so now, at a time when the registered social landlord sector is growing enormously as a result of large scale transfers of local authority stock. We note that the Government are moving in a similar direction in that, at the time of writing, amendments are being made to the Police Reform Bill to allow registered social landlords to apply for anti social behaviour orders.[21]

                      13.18              We provisionally propose that, so far as possible, local authorities and registered social landlords should have the same powers and duties, as landlords, in respect of anti social behaviour.

                      13.19              We invite views on whether unregistered housing associations should have similar powers and duties.

                      13.20              We do not consider that private sector landlords letting on type II agreements should have the same range of powers and duties. They will be able to evict the occupier on the mandatory notice-only basis as well as the discretionary basis for breach of the agreement, and can obtain injunctions, albeit without powers of arrest.

                      13.21              The Government does have concerns about the prevalence of anti social behaviour in the private rented sector in some areas of low housing demand and has recently completed a consultation exercise on proposals to license landlords in these areas.[22] Additionally the government has discussed withholding housing benefit from both occupiers and landlords who engage in or condone anti social behaviour.[23] These concerns however fall outside of the remit of our project.

                      13.22              Where private sector landlords choose to let on type I agreements, we again do not think they should have powers and responsibilities to respond to anti social behaviour over and above the power to evict or seek injunctions for breach of the term of the agreement relating to anti social behaviour.

                      13.23              Currently the law does not impose a duty on landlords to combat anti social behaviour.[24] Occupiers who are the victims of anti social behaviour have attempted to utilise the law of nuisance to impose liability on the landowner of the perpetrator occupiers, but to limited effect. As Susan Bright points out “[t]he parameters of nuisance law are unclear, and malleable.”[25] Occupiers, in particular, receive extremely limited protection against the actions of other occupiers from the law of nuisance. Essentially, a landlord will be only be liable if he or she has expressly or implicitly licensed the behaviour about which complaint is made.[26] In Hussain v Lancaster City Council[27]the Hussains, who ran a small shop on a local authority estate, were not able to persuade the council to take action to evict the perpetrators of appalling racial harassment. This was despite the fact that the perpetrators were council tenants or family members of council tenants, and therefore the council had sufficient powers. The Court of Appeal struck out the Hussains’ claim against the council.

                      13.24              The same result was reached in Mowan v London Borough of Wandsworth.[28] The Court of Appeal held that Article 8 of the European Convention on Human Rights did not require the law to be changed. Sir Christopher Staughton did, however, remark that this was “a deplorable result”.

A general duty

                      13.25              We consider that local authorities should be subject to a generally worded public law duty to combat anti social behaviour. As a general duty it should not found a cause of action for breach of statutory tort. That would make it individually actionable by the aggrieved occupier. (If that was the desired effect, we would use the proposal for a contractual duty outlined below in paragraphs 13.33 and 13.34). Although – in the current state of administrative law[29] – it would not in practice allow an individual occupier who claimed to be a victim of anti social behaviour to take legal action against a particular decision of the local authority, such a general duty would nevertheless have several advantages.

                      13.26              First, it would be a declaration of the importance Government attaches to combating anti social behaviour. Secondly, it would promote the importance of such action within the local authorities’ own decision making priorities. Finally, it would provide a focus for those, such as occupiers, seeking to hold local authorities democratically to account for their action (or inaction) in dealing with anti social occupiers.

                      13.27              We have already said that we consider that it is desirable to give local authorities and social landlords the same powers and duties in relation to anti social behaviour. However, whether housing associations (which constitute the great bulk of registered social landlords) are public bodies who can be made liable to such a general public law duty is currently very unclear.[30] Thus, we cannot simply address a generally worded duty to registered social landlords, as well as local authorities, and expect it to apply in a public law context. We are, however, anxious to maintain the principle of equality between local authorities and registered social landlords in respect of duties relating to anti social behaviour.

                      13.28              We consider that broadly the same effect could be achieved if legislation specified that registered social landlords were covered by a duty in the same terms as that imposed on local authorities (which would be expressed as not to take effect as a statutory tort). The legislation would then also impose a requirement on the Housing Corporation to have regard to the duty in performing its regulatory functions.[31] The result would be that the duty would become effective through the regulatory structure, rather than as a matter of public law. Other agencies involved with housing associations would also take the existence of the general duty into account, for instance, the Independent Housing Ombudsman.[32]

                      13.29              Alternatively if, as the case law develops, it appears that registered social landlords come to be generally regarded as public bodies, then it might be appropriate to give the Secretary of State a power to impose the duty on them, similar to the “general statutory duty” to promote race relations contained in section 71(1) of the Race Relations Act 1976 – as amended by section 2 of the Race Relations (Amendment) Act 2000. This may be extended to other bodies by order, provided that “the Secretary of State considersthat the extension relates to a person who exercises functions of a public nature”.[33]

                      13.30              We provisionally propose that a general duty should be imposed on local authorities to take action against anti social behaviour.

                      13.31              We further provisionally propose that a similarly worded duty be placed on registered social landlords, expressed as not to take effect in tort, which the Housing Corporation would be obliged to take into account in the performance of its regulatory functions.

                      13.32              We invite views on whether, as an alternative to the proposal in the preceding paragraph, the Secretary of State should be empowered to extend the duty on local authorities to registered social landlords, if he considers that they have come to be recognised as exercising functions of a public nature.

                      13.33              It is, however, possible to go further by imposing a requirement that social landlords[34] include, in their agreements, a term specifying that the landlord should take all reasonable steps to ensure that the occupier should be able to occupy the home unaffected by anti social behaviour by other occupants of other premises owned by the landlord. Breach of such a term would provide the occupier with specific and individual remedies, including a right to damages in the event of breach. An advantage of this approach would be that, because it arose out of the agreement, it could be equally imposed on both local authorities and registered social landlords. Such a requirement would further reinforce the principle that both landlords and occupiers have rights and responsibilities arising from the community nature of the provision. The duty would be drafted so as not to interfere with local authorities’ right to allocate according to its allocation scheme. Any decision not to re-house someone for previous anti social behaviour should be taken in the context of proper decision making on homelessness, not as a result of pressure arising from the duty. We acknowledge that such a term would place a burden on landlords and might have significant resource implications.

                      13.34              We invite views as to whether there should be a requirement on social landlords to include in their agreements a term specifying that the landlord should take all reasonable steps to ensure that the occupier is able to occupy the home free of anti social behaviour by the occupants of other premises owned by the landlord.

                      13.35              If there were such a term, clearly it would be for the benefit not only of the occupier but also members of his or her family or household. It would be possible to expressly make provision for the members of the occupier’s household to enforce it, as well as the occupier, by using the Contracts (Rights of Third Parties) Act 1999.[35] This option would be helpful if for some reason the occupier him or herself was unwilling or unable to enforce the term, but another member of the household could and would. If this option were adopted, however, there would have to be an express term to the effect that the agreement could be rescinded or varied without the consent of the third party, to ensure that members of the occupier’s family did not a veto over those matters.[36]

                      13.36              If consultees support the inclusion of a specific term in the agreement, we invite views on whether or not it should be expressed to be for the benefit of other members of the occupier’s household for the purposes of the Contracts (Rights of Third Parties) Act 1999 (subject to a further term not requiring their consent to any agreed rescission or variation).

                      13.37              We now turn to the issue of whether additional procedures should be available to social landlords to deal with serious anti social behaviour which was specifically related to the occupation of housing. This would be used as the basis on which the new remedies we propose in relation to type II and type I agreement should be available.

                      13.38              Our starting point is to think that it would help if there were a single, coherent concept of what amounts to serious housing related anti social behaviour. Such a definition must be drafted so as to cover the real problems experienced in housing management. We are not wedded to any particular form of words in advance of consultation. We offer below, however, a form of words to assist consultees. We start with the core notion of the conduct constituting anti social behaviour from the definition used in section 1 of the Crime and Disorder Act 1998: “acting in a manner that caused or was likely to cause harassment, alarm or distress”. This is the operative definition for the imposition of anti social behaviour orders, breach of which is a criminal offence. To this we add two further elements. First, we limit it to cases where the effects of the conduct are “serious”. Secondly, we are concerned with housing-related anti social behaviour – not anti social behaviour at large – and so attempt to introduce this link by specifying that it must be “either linked to the occupation of a home or occurs in the locality of a home”.

                      13.39              We provisionally propose that it would be advantageous if there were a single concept of housing-related anti social behaviour which would apply to new procedures for dealing with the matter.

                      13.40              We provisionally propose that serious housing-related anti social behaviour should be defined as “behaviour where the occupier or a person residing in or visiting the home has acted in a manner that caused or was likely to cause serious harm, harassment, alarm or distress to others where the behaviour is either linked to the occupation of the home and/or occurs in the locality of the home.”

                      13.41              Here we consider a proposal for a new procedure for the summary eviction of occupiers with type II (probationary) agreements.[37] The introductory tenancy regime, as originally intended by Parliament, was designed to give local authority landlords sufficient speed and certainty to deal with serious anti social behaviour. As a result of decisions by the courts, we have concluded that the introductory tenancy regime is not as speedy and certain as Parliament thought. In addition, the introductory tenancy regime was never available to social landlords.

                      13.42              The challenge in designing a new procedure is to find a way to accommodate the social landlords’ requirements with human rights principles

                      13.43              One approach would be to use existing procedures to afford the occupier a bare minimum level of Article 6 rights. The Court of Appeal in McLellan v Bracknell Forest BC[38]found that a combination of an internal review process before an application to the court for a possession order with judicial review while proceedings in the county court were adjourned, was compliant with Article 6. The problem with such a procedure is that it does not achieve the swift and certain removal of the alleged perpetrator of the anti social behaviour. At the same time, it can be seen as cutting the alleged perpetrator’s Article 6 rights to the minimum, providing an unsatisfactory, even if compliant, mechanism for judicial fact finding.

                      13.44              Our alternative is to propose that the perpetrator should be entitled to a judicial hearing, but until after his or her removal. This would ensure that the process, taken as a whole, was compliant with Article 6. The natural consequence of that is that an occupier who is subsequently found not to have been responsible for anti social behaviour must have appropriate remedies available.

                      13.45              We have considered two options.

                      13.46              The features of Option A would be as follows.

                                                        (2)      After eviction, the occupier would be entitled to apply to the court to consider the eviction. The court would determine whether the occupier had indeed breached the term prohibiting anti social behaviour, and, if he or she had, would go on to consider whether it was reasonable in all the circumstances to have evicted the occupier (using the structured discretion we propose below[39]).

                                                        (3)      If the court found that the occupier had not breached the term, or that he or she had done so but that nevertheless the eviction was unreasonable, then the occupier would be entitled to

                                                                                 (a)     be re-housed by the landlord in similar accommodation in the same general area, and /or

                                                                                 (b)     compensatory damages.

                      13.47              The features of Option B would as follows.

                      13.48              Both procedures would lead to swift eviction, with the right to a judicial consideration of the process after the event.

                      13.49              We have considered whether this process, taken as a whole, would amount to an effective remedy, as required by Article 13.[40] Article 13 is an auxiliary provision, dependent on an arguable claim that another Convention right has been breached, but it should also be seen as a long stop in that it imposes only minimal procedural safeguards. Where another Article in the Convention imposes a higher standard, then generally Article 13 has no application. In particular, Article 13 generally has no application where Article 6(1) is in play.[41]

                      13.50              The point could be made that the requirement for an effective remedy requires a domestic procedure “to deal with the substance of the relevant Convention complaint and to grant appropriate relief”.[42] One might think, therefore, that even if a court procedure was fully Article 6 compliant, it might not be an effective remedy if the court did not have power to grant appropriate relief.

                      13.51              However, the way in which the European Court on Human Rights has dealt with this is influenced by its approach to the relationship between Article 13 and the substantive Convention rights. The requirements of the Article are to be read in the light of the Convention as a whole, with the result that the remedy need only be as effective as is possible in the circumstances. If it were otherwise, then a finding that Article 8, for instance, had not been breached by German legislation regulating the interception of communications could be collaterally attacked using Article 13.[43]

                      13.52              The result has been that in practice, the argument has resolved itself into one about whether or not judicial review is (in the circumstances) adequate. Thus, although judicial review was adequate in Vilvarajah and Others[44] and Soering,[45] it was not in Chahal v UK[46] where the risk of treatment breaching Article 3 on the deportation of a Sikh activist to India required “independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3”. Judicial review in a “national security” case could not, under the rules then obtaining, satisfy that requirement. The court had already found a breach of Article 5(4), which is similar, for these purposes, to a breach of Article 6.

                      13.53              We accept that there remains a theoretical possibility that the Court might find that there was a procedure which was Article 6 compliant, but not adequate for Article 13 purposes, on the basis of inadequate relief. If it did, Chahal gives an indication of what the test of harm in such a case would be. It would be harm that breached Article 3, the prohibition on torture and degrading treatment, not merely Article 8 – or Article 10, in other cases discussed in Chahal – and within the Article 3 spectrum it would seem to be at the higher end, in that the Court refers to the “irreversible nature of the harm that might occur”.

                      13.54              This, we consider, is a very long way away from our procedure. It is fully Article 6 compliant and we cannot conceive that the relief, of re-housing and damages could possibly be inadequate to address the breach of Article 8 constituted by the eviction.

                      13.55              Accordingly, we provisionally propose that a new summary eviction procedure be created. It would be available to a local authority or registered social landlord believes that an occupier under a type II (probationary) agreement has been responsible for serious housing-related anti social behaviour. The occupier could subsequently challenge the reasonableness of the decision (option A) or the lawfulness of the decision (option B).

                      13.56              We invite views on whether option A or option B is to be preferred.

                      13.57              The summary accelerated possession procedure is, and is meant to be, a very powerful weapon in the armoury of social landlords to combat anti social behaviour. The procedure should only be used as a last resort, or in cases of extreme gravity.

                      13.58              One way of encouraging use only in such circumstances would be to require landlords to demonstrate that they have taken appropriate alternative steps. Landlords could be required to produce an account of what other steps had been taken to deal with the anti social behaviour as part of the court process. Failure to do so, or to do so adequately, might, in some cases, affect the decision of the court whether or not to order the eviction. If the court found the steps taken were inadequate, but still considered the eviction justified then the landlord could be penalised in costs.

                      13.59              We invite views on whether local authorities and registered social landlords should be required to produce to the court a document setting out either what alternative steps have been taken to deal with the anti social behaviour, or, if none has been, why it was appropriate in the particular case to proceed without taking such steps.

                      13.60              We also invite views as to whether failure by a landlord to provide the document or failure to do so adequately should be a matter that the court is entitled to take into account in coming to its decision, and could in addition be penalised in costs.

                      13.61              We do not consider that the summary eviction procedure with a post eviction hearing is compatible with the long term security that the type I agreement is designed to provide. But it is essential that there be a legal apparatus to control anti social behaviour by type I occupiers, or members of their household or their visitors.

                      13.62              Currently secure and assured tenants can be evicted for anti social behaviour where the court decides that it is reasonable to do so.[47] There is clearly a concern that it takes too long to get an order for possession and that the judicial outcome is too uncertain. We propose a number of innovations designed to enable the landlord to respond more effectively to anti social behaviour.

Powers of arrest on injunctions

                      13.63              Currently section 153 of the Housing Act 1996 creates a power of arrest which can be attached to a social landlord’s injunction for breach of the agreement term on nuisance in certain circumstances including the use or threat of violence and a significant risk of harm.

                      13.64              We proposed above that there should be a single definition of serious housing related anti social behaviour.[48] If that proposal is adopted, the power of arrest could be made available for injunctions by social landlords to restrain breaches of their nuisance term, where the breach amounted to serious housing related anti social behaviour according to that definition. This would effectively replace the cumbersome requirements of section 153. We consider that a power of arrest is a valuable tool both in restraining anti social behaviour and providing protection for its victims. This is particularly so where violence or threats of violence are involved.

                      13.65              We provisionally propose that the existing power of arrest in Housing Act 1996, section 153 should be replaced with a power for the court to add a power of arrest to any injunction for a social landlord to prevent a breach of a nuisance term which amounted to serious housing related anti social behaviour.

                      13.66              A power of arrest as part of a civil law sanction has potential for abuse, and therefore there are, we recognise, strong arguments for limiting its use to cases of actual or threatened violence, as at present. However we also recognise that serious and persistent non-violent harassment can still cause significant harm to the victim. Of particular concern is the harm caused by racially motivated property damage and verbal abuse, which would appear to us to be serious enough to ordinarily justify a power of arrest.

                      13.67              We invite views on whether the power of arrest should be available in respect of

                      13.68              It is perhaps worth noting that, although we have discussed powers of arrest in the context of type I agreement, they should also be available in respect of type II agreements.

                      13.69              The current secure tenancy regime contains a discretionary ground of possession for anti social behaviour. We propose maintaining the power of landlords to seek an order for possession for anti social behaviour where it is reasonable to do so. The procedure would involve issuing proceedings on the basis of breach of the agreement and the term pleaded would be the nuisance term. We also propose maintaining the current system of accelerated notice in possession applications on breach of the term in the agreement relating to anti social behaviour.

                      13.70              We have been concerned about suggestions of a lack of consistency in judicial decision making on the question of the reasonableness of granting a possession. We have proposed above[49] that there should be a statutory structuring of the discretion. In the context of appropriate remedies for anti social behaviour by occupiers we consider that further constraints on judicial discretion would be justified.

                      13.71              We provisionally propose that where there is a breach of the compulsory anti social behaviour term the judge would be required to exercise his or her discretion to order possession unless certain circumstances obtain. Those circumstances would be very limited, for instance that the breach was trivial or that circumstances had changed such that it was highly unlikely that the behaviour would be repeated (for instance where the person who was responsible for it had left the household).

                      13.72              This would be broadly in line with the current case law. In Woking BC v Bistram[50]the Court of Appeal explained that, in exercising their discretion in granting possession for anti social behaviour, judges must give proper weight to the local council's obligations to other occupiers on the estate. Further, in City of Bristol v Mousah,[51] the Court of Appeal held that where there are serious breaches of the terms of a tenancy, it is only in exceptional cases that it is not reasonable to make an order for possession.

                      13.73              As was seen in paragraph 10.14 above, we are also provisionally proposing that the notice period required for possession proceedings based on the term prohibiting anti social behaviour should be shorter than in other cases.

                      13.74              In addition, we consider that there are other remedies which would assist in dealing with serious anti social behaviour. If, in other (non-possession) proceedings, an appropriate court has found that the occupier is in breach of the anti social behaviour term in the agreement, then certain housing remedies should also be available. The proceedings we have in mind are those relating to breach of an injunction restraining breach of the nuisance term, and breach of a relevant anti social behaviour order. We consider each in turn.

                      13.75              If the county court finds that an occupier has breached the terms of an injunction restraining him or her from breaching the term of the agreement prohibiting anti social behaviour, then the factual basis for terminating the agreement exists. That the facts have been proved in injunction proceedings rather than in possession proceedings should not prevent the court from ordering eviction (subject to reasonableness). However, it may be that, even though the landlord might be entitled (subject to reasonableness) to have the occupier evicted in such circumstances, other options would still be useful. The first objective when dealing with anti social occupiers is to change their behaviour so that they cease to be a nuisance to their neighbours, and injunctions appear to be effective in changing behaviour. This could be taken a stage further, and remedies short of eviction provided as an alternative even where, on a breach of an injunction, the facts of breach are proved.

                      13.76              We provisionally propose that where the county court finds that an occupier has breached an injunction restraining breach of the term of the agreement prohibiting anti social behaviour, the court should have the power, on the application of the local authority or registered social landlord, to order that the occupier be

                      13.77              Demotion to a type II (probationary) agreement should not be allowed to continue indefinitely. If the anti social behaviour continues, the landlord will use the summary eviction procedure. If the behaviour improved, the landlord could promote the occupier at any time (thus providing an incentive for good behaviour that could be integrated into a more general approach to the occupier and his or her problems).

                      13.78              After a certain period, the occupier should have the right to apply to the court to be promoted back to a type I agreement. If the landlord took no action at all, then there should, after an appropriate period, be an automatic promotion back to a type I, but that should be subject to a further application by the local authority to extend the type II probationary period, to deal with the situation where the behaviour has abated, but then deteriorated again towards the end of the period.

                      13.79              We provisionally propose that, where an occupier is demoted under one of the orders referred to in paragraph 13.76(1) or (2) above, the occupier would be promoted back to a type I agreement if:

                      13.80              We invite views on the appropriate periods in paragraphs (2) and (3) above, but provisionally suggest six months for the former and two years for the latter.

                      13.81              The relocation order we propose would be appropriate where the physical removal of the occupier (and/or his or her household) from the immediate locality was expected by the landlord to stop the anti social behaviour. The order would operate in a similar way to a mandatory ground to evict where alternative accommodation is available.

                      13.82              The social landlord would not be restricted to letting within the local area, but the social landlord must continue to be the occupier’s landlord (so if, for instance, the occupier is accommodated in the private sector, the social landlord would rent the premises from the private landlord, and then sub-let them to the occupier).

                      13.83              We provisionally propose that, where an occupier is relocated under the order referred to in paragraph 13.76(2), the alternative accommodation should be suitable as defined in sections 206 and 210 of the Housing Act 1996, that is the landlord must have regard to the law governing unfitness, overcrowding and houses in multiple occupation, and the accommodation should also be affordable by the occupier and not put the occupier at risk of physical violence or racial harassment. The landlord should not be restricted as to its location.

                      13.84              Local authorities have the power to obtain anti social behaviour orders against a wide range of people for a wide range of behaviour, and the power is now being extended to registered social landlords.[52] Originally, anti social behaviour orders could only be obtained from the magistrates’ court, and breach proceedings similarly were confined to that court. With the amendments currently being made in the Police Reform Bill, county courts will be able to make orders, but only where the person against whom the order is made is a party to proceedings before it. Only local authorities, registered social landlords and the police can seek the order, but if they are not already a party to the proceedings before the court, they can be joined for the purpose of applying for the order. Breaches are still to be enforced in the criminal courts.

                      13.85              We do not consider that it is appropriate that breaches of all anti social behaviour orders should impact upon the security of tenure of social occupiers subject to the order. However, where the anti social behaviour order is related to the occupation of housing let on a type I agreement, then we consider that breach of the order should trigger the remedies outlined in paragraph 13.76. A problem with this is that it is not appropriate for magistrates to make the housing decisions required by our remedies. In particular, we make provision for consideration of the reasonableness of eviction, a matter which should not in our view be decided by magistrates.

                      13.86              The answer to this difficulty lies in allowing breach proceedings to be taken in the county court, where the order is housing-related, and the local authority or registered social landlord seeks to use the new remedies. Criminal sanctions arising from breach of the anti social behaviour order would continue to be available only from the magistrates’ court.

                      13.87              This would require that the court making the order in the first place, whether the magistrates’ court or the county court under the new amendments, certified that the behaviour warranting the making of the order is, or includes, behaviour that would constitute serious housing-related anti social behaviour. Once an anti social behaviour order had been identified as a “housing” order in this way, we propose that a local authority or registered social landlord should have the choice between the magistrates’ court and the county court for taking proceedings for breach of the order.

                      13.88              We provisionally propose that where the anti social behaviour orders can be certified as including a finding that the conduct of the occupier included behaviour within our concept of serious housing-related anti social behaviour[53] then a local authority or registered social landlord would be able to choose to take breach proceedings in the county court, which would be able make an order to transfer, demote or (subject to reasonableness) evict the occupier, once breach is established. The court would then be empowered to commit the occupier to the magistrates’ court or the Crown Court for sentence for breach of the order.

                      13.89              An alternative approach would be to allow county courts to make anti social behaviour orders generally, rather than merely in the context of other proceedings. Anti social behaviour orders are a mixture of civil and criminal proceedings. The fact that they were available from and enforced in the magistrates’ court emphasises the importance of the criminal element in their make-up. The balance between criminal and civil elements, however, would be changed by our proposed new remedies, which are civil in nature. The Government has made it clear that there is already some role for county courts, by extending the jurisdiction to grant orders to them where there are other proceedings. It would, therefore, we consider, be desirable and appropriate to extend the jurisdiction to make the orders generally to county courts. One further advantage of this would that any potential problems with the certification process in the magistrates’ court would be removed.

                      13.90              As an alternative to the provisional proposal above, we provisionally propose that the county court should be given jurisdiction to make housing related anti social behaviour orders.