Shaky ground

Will changing housing legislation really make it easier for social landlords to evict tenants responsible for anti-social behaviour? In his article 'Hitting a wall' (Solicitors Journal 155/39, 17 October 2011), Alec Samuels discussed some of the hurdles local authorities face in their attempts to evict tenants based on the recent rioting and looting. He touched on the government proposal to introduce a new ground for possession. This article looks at the current government consultation '“ A new mandatory power of possession for anti-social behaviour: consultation (DCLG, August 2011) '“ which closed on 7 November 2011. It includes the amendments made on 15 August 2011 following what Grant Shapps described as 'disgraceful looting and rioting across England' and asks whether the proposed new mandatory ground for possession will achieve the objective of making eviction on grounds of anti-social behaviour 'easier' for social landlords. It also questions the wisdom and practical effect of such changes.

The objective of the consultation is to speed up the process for social landlords to obtain possession orders where there has been anti-social behaviour. The proposal is a mandatory ground for possession against those who have already been proven in other proceedings to have acted in an anti-social manner. The type of behaviour that would satisfy the mandatory ground will be serious housing-related offences ('indictable only' offences), breaches of anti-social behaviour injunctions and behaviour giving rise to the granting of a closure order.

There is also a proposal to amend ground 2, schedule 2 of the Housing Act 1985 and ground 14, schedule 2 of the Housing Act 1988 to include a power for the court to grant possession in cases where the tenant (or a member of their household) has been convicted of violence against property, violence against persons at a scene of violent disorder or theft linked to violent disorder. This proposal does not contain a requirement that such convictions relate to the locality of the property as the grounds currently drafted do.

Existing powers

The current legislative tools available to social landlords to control anti-social behaviour so far as possession proceedings are concerned include:

(a) proceedings for breach of terms and conditions of a secure or assured tenancy (including an assured shorthold tenancy);

(b) proceedings for conduct causing or likely to cause nuisance or annoyance or conduct leading to a conviction of a secure or assured tenant (including an assured shorthold tenancy);

(c) claim for a demotion order;

(d) proceedings for termination of an introductory tenancy, a non-secure tenancy and a demoted tenancy; and

(e) proceedings for termination of an assured shorthold tenancy.

In addition, social landlords can apply for anti-social behaviour injunctions (in the county court) and anti-social behaviour orders (in the county court where there are other 'principle proceedings' and magistrates' court).

Of the different types of possession proceedings available, all are capable of being pursued on a mandatory basis save for those listed at (a) and (b) above that have an additional element that the landlord must satisfy the court of 'reasonableness'. Before deciding to grant an order for possession, the court must be satisfied in all the circumstances that it is reasonable to grant an order for possession. The amendment proposed to ground 2 of the Housing Act 1985 and ground 14 of the Housing Act 1988 would retain the requirement for the landlord to satisfy the court that an order is reasonable.

Reasonableness is an important concept. The Court of Appeal has held that reasonableness can be equated with proportionality (see Lambeth LBC v Howard [2001] EWCA Civ 468). Accordingly, housing legislation where reasonableness is a consideration is compatible with the articles set out in the European Convention of Human Rights including the qualified article 8 right: the right to respect for a person's home.

A mandatory ground for possession would eradicate the consideration of reasonableness and would put any claim for possession being pursued on that ground in the same category as introductory tenancies, demoted tenancies and non-secure tenancies; it would open the floodgates to lengthy and costly arguments based on public law and human rights defences.

The courts recognised some time ago that defendants in possession proceedings brought by public bodies should be able to rely on public law principles as a ground of defence. The use of a public law defence was established in Wandsworth LBC v Winder [1985] AC 461 HL and confirmed, following various other cases, in Kay v Lambeth LBC [2006] UKHL 10 and Birmingham CC v Doherty [2008] UKHL 57.

The European Court of Human Rights (ECtHR) has consistently held that a person at risk of losing his home should, in principle, be able to have the proportionality of the measure determined by an independent tribunal, notwithstanding that, under domestic law, his right of occupation has come to an end (see, for example, Connors v UK [2004] 40 EHRR 189; McCann v UK [2008] HLR 40; Ćosić v Croatia App No. 28261/06; and Kay v UK [2011] HLR 2).

Recent Supreme Court decisions have appeared to accept the ECtHR jurisprudence, to some extent at least, by holding (inter alia) that for domestic law to be compatible with article 8 of the convention, where a court is asked to make an order for possession of residential property in a claim brought by a public authority, the court must have the power to assess the proportionality of making the order (Pinnock v Manchester City Council [2010] UKSC 45 and Powell v Hounslow LBC [2011] UKSC 8). The caveat to this decision is that any argument on proportionality must be 'seriously arguable'. The Pinnock and Powell decisions therefore seem to have ended any argument as to the ability of tenants to rely on public law and human rights defences in any possession proceedings brought on mandatory grounds by a public authority.

Causing delays

Judges in the county courts are familiar with the concept of reasonableness and are adept and capable of applying that concept in possession proceedings. They are frequently able to deal with issues of reasonableness at the first hearing (assuming there are no other complicating factors). The current landscape in respect of public law and proportionality '“ the Supreme Court has suggested any defence that is not 'seriously arguable' should be dismissed and a possession order must be made summarily '“ more often than not causes delays as such arguments often require the court to become heavily involved in factual considerations that are time consuming, rendering the matter unsuitable for disposal at a first hearing resulting in an adjournment to a further, usually more lengthy, hearing.

The proposed mandatory ground requires that a landlord must have first obtained a judgment that involves either breach of an injunction, an indictable offence or a closure order. Those proceedings require the courts to go through their established procedures for administering justice, with the overriding objectives of the Criminal Procedure Rules and Civil Procedure Rules in mind, and will usually end in a trial with findings of fact and a judgment. These procedures are not shortened or affected by the introduction of a mandatory ground for possession.

There are often adjournments at the first hearings in all types of claims because of issues such as a defendant needing legal advice, Legal Services Commission funding problems and insufficient court time. Where possession is being sought on a mandatory ground the Court of Appeal has considered the court's power to adjourn (see North British Housing Association Ltd v Matthews [2004] EWCA Civ 1736). The court held that courts retain a general jurisdiction to grant an adjournment at any time before being satisfied the landlord is entitled to possession.

Ignoring the realities

Courts' financial and practical resources are at full stretch. We believe the proposal to introduce a mandatory ground for possession will not achieve the aim sought. The proposal completely ignores the practical realities of pursuing possession on grounds of anti-social behaviour and case managing such proceedings. The introduction of such a proposal will have little, if any, effect on the time frames involved in obtaining a possession order on the basis of anti-social behaviour. If anything, it will only serve to take up more court time, thereby not being fair to either witnesses, victims or tenants accused of anti-social behaviour. In addition, proceedings will be lengthened as lawyers engage in new arguments to define and test the new legislation.

Moreover, it is difficult to accept that it will be reasonable to grant a possession order where a case relies on a one-off incident (as one hopes, for the most part, will be the case with the recent rioting) that has not taken place in the locality of the property and does not affect the neighbours or wider community within the locality of the property. Indeed, case law leans against making possession orders in such circumstances.

Anti-social behaviour should be a government priority, and those who are victims of such behaviour should be able to have confidence in the legal system to deal with anti-social behaviour. The creation of a mandatory power for possession and the creation of a power to bring a claim for possession for incidents completely unrelated to the property or its locality is not, however, an expeditious or effective way of dealing with anti-social behaviour in the light of the way the legislation and case law has developed over the years and currently stands.