The Law Commission

PART XV

ANTI-SOCIAL BEHAVIOUR

Introduction

15.1     Housing law has an important role to play in the control of anti-social behaviour. The relationship between rented housing and anti-social behaviour and the background to our proposals are both explained in Part XIII of CP 162 at paragraphs 13.1 – 13.9.
15.2     Our original proposals proved very controversial. They stimulated the most polarised, and the greatest volume of, responses. Following careful analysis of the responses, we have modified our original proposals. In particular, we have decided not to proceed with our proposals for summary eviction or further structuring of discretion in anti-social behaviour cases.
15.3     In respect of summary eviction, we have accepted the arguments of consultees that whilst our proposed procedure would have enabled a swift response to anti-social behaviour, it was likely to be burdensome administratively and was potentially a disproportionate response to the problem. We have also accepted the view expressed by the Civil Justice Council and the Association of District Judges, amongst others, that seeking to structure judicial discretion in anti-social behaviour cases above and beyond what we had recommended generally in relation to the structuring of discretion in possession proceedings would, in effect, remove all discretion from judges. We accept that this would be inappropriate.
15.4     We have noted that the concerns of respondents, particularly from lawyers who represent tenants, arose to a large extent from unease at adding to the legal powers of social landlords when, in their opinion, local authorities in particular were failing to utilise fully legal powers already available to them. These views were also shared by voluntary sector organisations that represent tenants' interests.
15.5     On the other hand nearly all respondents recognised that there was a need for landlords to take anti-social behaviour seriously. Responses from organised tenants' groups and many local authorities expressed great concern about anti-social behaviour.
15.6     Our consultation coincided with the DTLR (now the ODPM) consultation "Tackling Anti-social Tenants" and our proposals and the responses to them have to an extent informed proposals within the Anti-social Behaviour Bill.^[1] That Bill, currently before Parliament, has inevitably been drafted within the context of the current statutory framework.
15.7     We intend that the housing measures contained in the Anti-social Behaviour Bill should be adapted to the statutory framework we have proposed. We want to ensure that the measures are consistent with our general approach to housing law, which is based on the consumer approach, requires clear statements of the respective rights and responsibilities of the parties, is flexible and aims as far as possible for landlord-neutrality.

Policy objective

15.8     We are concerned that effective powers to deal with housing-related anti-social behaviour are available to social landlords. They must be enabled to fulfil their functions as landlords with responsibilities not only towards their tenants but also their local communities. However, we stress that the broader functions of local authorities to police their areas, and any extension of these broader policing roles to registered social landlords, fall outside of the scope of our project.
15.9     We consider that social landlords require a legal framework that is sufficiently flexible in order to enable them to develop effective strategies to tackle anti-social behaviour within rented housing and to respond to the needs of victims and of the local community. The legal framework should be designed to meet the following objectives:

(1) speed of response;

(2) predictability of outcomes of legal proceedings;

(3) ability to protect witnesses;

(4) where possible, provision of support to enable perpetrators to change their behaviour and continue as occupiers; and

(5) appropriate protection of the rights of the alleged perpetrator.

15.10     The legal powers we recommend for social landlords must be balanced against the extensive rights that occupiers under type I agreements enjoy. Moreover, our recommendations aim to ensure that social landlords give sufficient priority to the protection of the majority of their occupiers, so that enjoyment of their rights is not diminished by the anti-social behaviour of a very small minority of occupiers.

Domestic violence

15.11     Anti-social behaviour is generally understood to relate to behaviour that impacts upon people, not necessarily strangers, who are outside the domestic circle of friends and family of the tenant. Violence and harassment within the domestic circle is not generally considered to be anti-social behaviour. However, from the perspective of housing management, there is little difference in the types of remedies which should be available. We therefore recommend that the same powers should be available to respond both to anti-social behaviour and to violence within the home.

Which landlords?

15.12     One major feature of our statutory scheme is landlord-neutrality. However, we consider that this approach cannot apply in an undifferentiated way to the responsibilities and powers of landlords to respond to anti-social behaviour.

Private landlords

15.13     Private landlords are not covered by the requirement to let on type I occupation agreements. Most will rent properties on the basis of type II agreements. They will have the notice-only method of terminating the agreement available to them. They will also have the benefit of the special anti-social behaviour term (see paragraphs 15.20 – 15.22 below).
15.14     Several responses to CP 162 advocated strong measures to require private landlords to control the conduct of anti-social tenants. We consider that to suggest extending the legal responsibility of private landlords towards anti-social behaviour beyond the terms of the occupation agreement raise quite different issues to those that need to be considered in relation to social landlords. We have concluded that these issues fall outside the scope of this project.^[2]

Social landlords

15.15     At the moment, local authority landlords have different powers and responsibilities from registered social landlords and non-registered housing association landlords. We recommend that the powers and duties available to social landlords should be aligned.
15.16     The current Anti-social Behaviour Bill provides for the extension of certain powers to charitable housing trusts to obtain injunctions coupled with powers of arrest and/or exclusion provisions, where there is breach of the tenancy agreement. We have thought carefully about the role of charitable housing trusts and, in particular, their function in providing housing to some very vulnerable tenants and their public accountability. In the light of these considerations, and on the assumption that the proposals in the Bill are enacted, we have decided to recommend that charitable housing trusts should have the same powers as other social landlords.

A general duty on social landlords to deal with anti-social behaviour

15.17     The primary reason why social landlord's powers to respond to anti-social behaviour should be expanded is the protection of their occupiers. The Anti-social Behaviour Bill provides in clause 12 (which inserts a new section 218A into the Housing Act 1996) for the publication of social landlords' policies and procedures on anti-social behaviour.
15.18     While this is very useful, we consider that social landlords should be required to give some priority to tackling anti-social behaviour. We are mindful of the concerns expressed by local authorities and some lawyers about the risk of proliferation of claims for compensation if an actionable duty were to be imposed on social landlords. We therefore recommend the creation of a general "target"^[3] duty on local authority landlords to take into account, in the management of their rented property, the need to deal with anti-social behaviour. We also recommend that a similarly worded duty be placed on registered social landlords, expressed so 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.
15.19     We consider that such a target duty would assist social landlords in giving anti-social behaviour the priority that it requires, but without involving them in unnecessary claims for compensation.

A special anti-social behaviour term

15.20     We recommend that a special term prohibiting anti-social behaviour is inserted into all occupation agreements, both type I and type II. All types of landlord will be able to take proceedings against an occupier in breach of this term. Further, if the landlord has already obtained an injunction to restrain breach of the term which the occupier breaches, the landlord will be able to ask for a possession order from the court as part of his enforcement of the injunction, without issuing separate possession proceedings. It will not be possible to contract out of or amend this term. We recommend the term should be based on the definition of anti-social behaviour contained in the Anti-social Behaviour Bill which proposes to insert new sections153A to153E into the Housing Act 1996.
15.21     We recommend that the special term should only apply to anti-social behaviour committed by holders of occupation agreements in the home or in the locality of the home. The term will also treat other unlawful behaviour that does not cause nuisance or annoyance as anti-social but only when it involves the use of the housing accommodation for criminal purposes. Finally our recommended term will apply to violent behaviour within the home.
15.22     The effect of the term will be that the occupier agrees not to:

(1) engage in conduct that (a) is capable of causing nuisance or annoyance to any reasonable person in the locality; or (b) involves the use, or threatened use, of violence or causes a risk of significant harm to a person within the home; or (c) allows, incites or encourages a person residing in or visiting the home to engage in such conduct;

(2) use, or threaten to use, the home for criminal purposes or allow, incite or encourage any other person to use, or threaten to use, the home for such purposes.

Remedies for anti-social behaviour

15.23     We have recommended that occupiers may be evicted for breach of contractual terms when it is reasonable for a court to make a possession order.
15.24     In addition, injunctions will be available to all landlords for breach of the special term prohibiting anti-social behaviour. If the injunction is breached, a landlord will be able to seek a possession order as a remedy for the breach without issuing separate possession proceedings. The court will be able to order possession where it is reasonable to do so. The injunction must contain a warning that breach may lead to eviction as well as warning of the potential for committal for breach. The streamlining of breach and possession proceedings for anti-social behaviour will enhance the deterrent value of the injunction.
15.25     Further, social landlords^[4] should have a free-standing power, not linked to the agreement, to seek an injunction to protect a wide range of potential victims from anti-social conduct, with anti-social conduct defined on the same basis as in the anti-social behaviour special term.
15.26     Potential victims include:

(1) those with rights to occupy accommodation owned or managed by the social landlord,

(2) those who live in other housing accommodation in the locality of the social landlord's accommodation, and

(3) those engaged in lawful activities in housing accommodation, or the locality of housing accommodation, owned or managed by the social landlord.

15.27     The perpetrators include both those who engage in anti-social conduct and those who allow, incite or encourage someone else residing in or visiting the social landlord's housing accommodation to engage in such conduct.
15.28     In cases where the anti-social conduct consists of, or includes, the use, or threatened use, of violence or there is a risk of significant harm to a person in the locality of the property, additional remedies will be available. These include: powers of arrest, which may be attached to any injunction; and exclusion orders.
15.29     Because exclusion orders will operate to remove a person from their home, they will only be available on a with-notice basis. While an exclusion order is in force, the respective rights and responsibilities of the parties to the occupation agreement will continue. Therefore, rent will still have to be paid and repairing obligations honoured.
15.30     Breach of the free-standing injunction may lead to possession where the order is made against an occupier, the landlord requests possession following breach and the court considers that it is reasonable to order possession. The occupier must be given notice that breach of the injunction may lead to possession.
15.31     The purpose of these powers is to provide flexibility for social landlords in their responses to anti-social behaviour. Thus there will be no need for landlords to commence separate possession proceedings as well as seeking an exclusion order; nor will they have to start separate possession proceedings where there has been breach of an injunction. However, where needed, possession proceedings will still be available.
15.32     We have already recommended that courts must take certain factors into account when exercising their discretion in possession proceedings.^[5] To ensure that the judge takes full account of the broad impact of such behaviour, in the context of anti-social behaviour he/she must consider the impact of the behaviour on:

(1) the landlord's other occupiers;

(2) other neighbours who are not renting from the landlord;

(3) the local community.

15.33     We have considered whether eviction should be a potential consequence of breach of an anti-social behaviour order made under the Crime and Disorder Act 1998. We have decided that it would be too complex to try to categorise anti-social behaviour orders into those where breach could lead to possession proceedings and those which should not, because the behaviour is not sufficiently connected to the occupation of housing. In any event, we think our recommendations on injunctions will be sufficiently flexible and responsive to the needs of landlords. We have therefore decided not to proceed further with this idea.

Exceptional use of type II agreements to prevent or respond to anti-social behaviour

15.34     The introductory tenancy introduced by the Housing Act 1996 provided a useful mechanism for local authority landlords who are concerned to ensure that tenants demonstrate they understand both the responsibilities and the rights of the secure tenant.
15.35     We have recommended that all social landlords should have exceptional power to use the type II agreement to provide a similar probationary form of agreement.^[6] The probationary type II agreement will be available for 12 months in the first instance. After 12 months, a social landlord will be able to extend the probationary period for a further 6 months, but only if it is of the opinion that the behaviour of the occupier was such as to warrant such an extension.
15.36     Social landlords will have flexibility to choose whether their use of the probationary exception should be limited to individual cases, or to operate on a more general basis. Indeed they will be able to decide not to use any probationary type II agreements.

Demotion

15.37     Social landlords will also be able to use type II agreements when they have asked a court for an order to this effect, in the context of proceedings for breach of the special anti-social behaviour term. This order will provide that an occupier, currently under a type I agreement, should have that agreement demoted to a type II agreement.

Maximum period for demotion

15.38     We recommend that where an occupier is demoted under a court order, the occupier would be promoted back to a type I agreement if:

(1) the landlord chooses to do so;

(2) the court so orders, on the application of the occupier after six months; or

(3) automatically after one year.

15.39     Demotion orders should only be made where the court is satisfied that otherwise it would have been reasonable to terminate the agreement for anti-social behaviour and where the social landlord produces a plan to provide appropriate support for the occupier. The Secretary of State will be given a power to specify the requirements of the support to be provided to demoted occupiers. The Secretary of State will also be given a power to vary the period of time for which such an order is to last. Failure to provide the planned support will be one possible basis for the occupier's application for re-promotion.

Domestic violence

15.40     Section 145 and section 149 of the Housing Act 1996 created a discretionary ground for eviction for both secure tenancies and assured tenancies let by social landlords where a violent partner forces the other partner to leave the home and the court is satisfied that the partner who has left is unlikely to return. The ground (2A in Schedule 2 to the Housing Act 1985 and 14A in Schedule 2 to the Housing Act 1988) applies to couples who are married or living together as husband and wife and does not therefore cover same sex couples or other relationships. Either or both of the couple must be a tenant. It is available where there has been violence towards the leaving partner or a member of that person's family who was residing in the accommodation immediately before the partner left. The ground requires that the landlord prove that the violence was the cause of the partner leaving and that he or she is unlikely to return.
15.41     The Government in the course of their consultation on domestic violence^[7] have specifically raised the question of how to increase the effectiveness of this ground of possession.
15.42     Clearly the limits on its operation constrain its use at present. More significantly, in many situations at present, there is no need for social landlords to use the domestic violence ground. Where a partner who is a joint tenant leaves the family home as a result of violence, and the landlord is able to reach an agreement with the victim that he or she will serve a notice to quit, this terminates the tenancy of the remaining joint tenant, the perpetrator of the violence. The landlord will then be able to grant a new sole tenancy of the home to the victim.
15.43     We have recommended that, under our scheme, the service of a notice by a joint occupier should operate to terminate the occupation agreement in relation to that occupier only. As regards the other joint occupier(s), the agreement will be unaffected.^[8] Thus, the current method of responding to the continued occupation of the perpetrator of domestic violence will no longer be available to the social landlord. Potentially, therefore, the perpetrator could profit from his or her wrong doing by gaining occupation of the whole property.
15.44     However, we have recommended above that breach of the anti-social behaviour special term will be available to landlords as a basis for termination of the occupation agreement. There is nothing to prevent its being used to control anti-social behaviour perpetrated against other people within the property.
15.45     Social landlords will have greater scope to take action than under the current domestic violence ground. There will be no restriction on the availability of the ground against spouses and co-habitants only; there will be no need to prove that violence caused the victim to leave the property; and there will be no need to demonstrate that the victim has no intention to return to the property. For this reason, there will be no need to replicate the current domestic violence ground.
15.46     Social landlords will also be able to use the free-standing injunction power with exclusion orders and power of arrest in cases of domestic violence.^[9]
15.47     In either case, social landlords will be able to seek a possession order in proceedings for breach of any injunction. The possession order will operate to terminate a joint agreement in the normal way. In cases of domestic violence it will also terminate the victim's agreement. However, the court's consideration of reasonableness will include consideration of the landlord's plans for re-housing the victim. The landlord will have two options.

(1) If the victim wishes to be re-housed elsewhere, the landlord will be able to re-gain possession of the property following a suitable offer to the victim.

(2) Where the victim wishes to remain in the current home then the landlord will be able to offer her or him a new agreement for that property.

15.48     These seem more sensible outcomes than those available under the current domestic violence ground.

Note 1    References within this Report to the Anti-social Behaviour Bill are references to the Bill as amended in committee in the Lords and printed as HL Bill 108 53/2 (7 October 2003).    [Back]

Note 2    We have recommended that part of the proposals for further work should examine anti-social behaviour in the private sector: para 2.39 above.    [Back]

Note 3    See Inner London Education Authority ex p Ali (1990) 2 Admin LR 822. For an example of a case concerning whether a statutory duty should be categorised as a “target duty” or not, see R(on the application of A) v Lambeth Borough Council [2003] UKHL 57.    [Back]

Note 4    For these purposes, social landlords will include unregistered housing associations and charitable housing trusts.    [Back]

Note 5    See paras 9.81 – 9.90 above.    [Back]

Note 6    See paras 5.33 – 5.35 above.    [Back]

Note 7    Safety and Justice: The Government’s Proposals on Domestic Violence (2003) Cm 5847.    [Back]

Note 8    See paras 11.25 – 11.30 above.    [Back]

Note 9    This will in effect implement Family Law Act 1996, s 60 for social landlords.    [Back]