Hitting a wall

In the aftermath of the recent riots the government said it would consider amending housing law rules on eviction to cover rioting and looting. Because current eviction rules under the Housing Act 1985 place particular emphasis on impact on the 'locality', evicting a council tenant for being convicted of rioting and looting may not in itself be sufficient.

The limitations of the current legislation are immediately obvious. Although local folk are likely to be annoyed that a neighbour has been convicted of rioting and looting in the town centre such conduct is unlikely in itself to affect the quality of life in the locality, and apprehension that rioting and looting may take place in the future in the locality seems too tenuous in itself.

The word 'locality' might be seen as vague and imprecise but the courts have said it should be given its ordinary meaning. There can be a variety of geographical descriptions '“ neighbourhood, vicinity, locality, area, broad geographical area, district, postal district, estate, village, town, city '“ many of which are almost interchangeable. But the Court of Appeal has said that locality was a matter of fact for the judge in each case. The whole or part of the council estate may qualify, or parts of two estates straddling the boundary. A locality as understood by the residents is likely to be a cogent factor (see Manchester City Council v Lawler [1998] EWCA Civ 470).

Similarly a geographical area within sight and sound and uncomfortable proximity to the anti-social behaviour looks like a locality. In the context of social housing, the council estate seems a likely locality, i.e. the place where local folk would live their daily lives. It might include the school, the clinic, the local shops, and similar facilities and services. Local features such as a particular spot where the anti-social people lived and congregated might be relevant. The socio-economic profile of the local folk might be relevant.

Where the word locality was introduced into the legislation, and it was preferred to 'vicinity', the purpose was to be as flexible and all-embracing as possible, and to require a link between the anti-social behaviour and the local folk on whom the behaviour was likely to impact. The concept of the estate, the council estate, was in mind (see Hansard, minister for local government, housing and urban regeneration, Mr David Curry, Standing Committee G, 27 February 1996).

Going further

One option for councils seeking to go further than the statutory law is to introduce appropriate terms into the tenancy contract, such as the right to evict if the tenant is convicted of any crime injuring or threatening any resident in the council area or criminally damaging any property in the council area.

But even if the breach of contract and/or statute is established, the judge must still be persuaded that it would indeed be reasonable to make an order for possession under section 85(2) of the Housing Act 1984. The judge must take into account all relevant circumstances, including the nature of the criminality and the way of life of the tenant and his family, as well as the interests of the neighbours and of the public generally. Resulting homelessness, intentional homeless, would have to be taken into account too. The tenant may be able to find alternative housing in the private sector but the council may feel it prudent to offer some 'basic' accommodation where neighbours are unlikely to be affected (see City of Bristol v Mousah [1998] 30 HLR 32, CA).

Not the tenant anyway

One particular difficulty is that, very often, the rioter and looter is a young man who is not a tenant at all but still lives with his parents, who cannot be evicted for the crimes of their son unless they were in some way involved with his criminality. However, if in due course the young man were to seek a tenancy in his own name then his criminal record could become a factor relevant in refusing him.

Real difficulties and sensitivities can arise where the tenant sought to be evicted is suffering from a degree of mental illness. Having regard to the behaviour of the tenant and having regard to the impact upon the neighbour and others in the locality, at the end of the day is it reasonable to make the order for possession? A delicate balance may be called for (see Manchester City Council v Romano [2004] EWCA Civ 834).

Even if a possession order is made the judge may still suspend the order under section 85 of the Act, but the judge would need to be persuaded on the evidence that the criminality had ceased, will not be repeated, there is genuine remorse and the neighbours will not be subjected to any future risk (see Sandwell MBC v Hensley [2007] EWCA Civ 1425).