The proposal for a new absolute ground for possession is misjudged

Back in 2011, the government began a consultation on its proposal to introduce, among other things, a mandatory ground for possession against tenants who commit acts of anti-social behaviour. A year later the government published its response (Strengthening Powers of Possession for Anti-Social Behaviour: summary of responses to consultation and next steps, May 2012, DCLG) and confirmed that it was minded to introduce the new ground of possession in a new Anti-Social Behaviour Bill.

That bill - the Anti-Social Behaviour, Crime and Policing Bill - was finally laid before parliament on 9 May 2013. Part 5 makes provision for the introduction of the "absolute ground for possession for anti-social behaviour".

The new "absolute ground" will be based on the current introductory tenancy procedure (i.e. the landlord will be required to give its reasons for seeking possession in a notice and the tenant will have the opportunity to request that his landlord conduct an internal review of their decision before the court is required to make a possession order) (clauses 87 and 88). Clauses 86 and 89 provide that the absolute ground will be available against secure, flexible or assured tenants if any '¨of a number of conditions are satisfied'¨(see box opposite).

Swift action

According to the government the purpose of the new ground is to "make it easier for landlords to take swift and decisive action against their most anti-social tenants" (paragraph 7, Anti-Social Behaviour, Crime and Policing Bill Eviction Factsheet, DCLG, May 2013). In its response to the consultation, it said that the purpose of the absolute ground was to "speed up the [eviction] process to better protect victims in the most serious cases of anti-social behaviour and criminality" (paragraph 4.27, Consultation Response).

It was not, however, to increase the number of evictions. The government accepted that an increase in the number of evictions would be undesirable and the eviction of a tenant should be "a last resort to be used exceptionally and where other interventions to tackle anti-social behaviour have been tried and failed" as an eviction may "simply move the problem elsewhere" (paragraph 4.26).

Speedier process?

Supporters of the ground in the consultation argued that the absolute ground was necessary as the eviction process was '¨too cumbersome.

It is hard to see, however, how the proposals will actually speed up the eviction process. First, for any of the absolute ground's conditions to be satisfied a county, crown or magistrates' court must first have found a tenant guilty of anti-social conduct. This will inevitably involve a trial. Thus, the absolute ground may replace the need for a possession trial, but it will not replace the need for some form of trial to take place. Such trials, whether they are in the county, magistrates' or crown court, are subject to the same delays that affect possession claims.

Second, it is already the case that where another court, whether civil or criminal, has found that a tenant has been guilty of anti-social conduct the landlord can rely on those findings in the possession trial and is not required to prove them again. This already greatly reduces the time estimate of a possession trial.

Third, any claim for possession brought on the absolute ground is susceptible to a public law or Article 8 defence. While such a defence, in the vast majority of cases, is unlikely to be successful, a defence that is seriously arguable must be allowed to proceed to a trial and should not be dealt with summarily. In such circumstances, this will also delay the eviction process.

More evictions

If the intention is simply to speed up the eviction process, rather than to increase evictions, it is not at all clear why there was a need to remove the court's discretion to suspend or postpone the eviction. The county courts are well experienced at carrying out this exercise and there is no reason why it could not be done within a hearing of, say, two hours. This is hardly going to delay the eviction process and removing this discretion will mean that tenants who can demonstrate, with persuasive evidence, that their behaviour has improved, i.e. the only circumstances in which a court is able to suspend or postpone a possession order under the current discretionary ground (see most recently Birmingham CC v Ashton [2012] 1557), will nonetheless be evicted where they otherwise wouldn't have been.

It must follow that there will be an increase in the number of evictions. The government, assured by the consultation responses, is confident, however, that this will not be the case because the absolute ground for possession will only be used for cases that would have resulted in an outright order for possession being made '¨under the current discretionary grounds (paragraph 4.28).

This confidence is at best misplaced '¨and at worst disingenuous. First, it is '¨hard to envisage circumstances where a landlord will opt to use the discretionary ground where the absolute ground is available and the landlord wants an outright possession order. While not always the case, landlords do not generally bring claims for possession unless they are confident that an outright order is both obtainable and the appropriate remedy. It is not uncommon, however, for the court to take a different view and suspend the possession order. Therefore it must logically follow that the removal of the court's discretion will lead to more outright orders being made than is presently the case.

Second, the absolute ground's conditions are likely to be satisfied in circumstances where landlords are presently unlikely to obtain an outright order for possession. It is hard to imagine many courts granting possession orders, let alone outright orders for possession, where a tenant has, on one occasion, breached an injunction by entering an exclusion zone or breached a noise abatement notice. Yet a court will, if the ground is relied on by the landlord, be forced to evict a tenant in such circumstances.

Despite this, the government does not intend to restrict the use of the absolute ground through statutory guidance. It has emphasised that "it will entirely be for landlords locally to decide whether to make use of the new mandatory [ground]'¦ in circumstances in which we intend [it] will be available" (para 4.24).

Third, while the majority of landlords indicated that they would not use the absolute ground in all of the cases where it was available, certain landlords were clear that they would look to use the absolute ground in most of the instances where it was available (paragraph 3.33) and only 15 per cent of the landlords consulted said that they would not consider using the absolute ground at all. One doesn't need a crystal ball to predict that landlords will use the discretionary ground where all they want is a suspended possession order, and the absolute ground where an immediate possession order is desired.

Better ways

No sponsor of a change in the law can ever be sure that the change they propose will achieve its purpose. By introducing the absolute ground for possession, however, it ought to be obvious from the consultation responses that the change to the possession process is unlikely to speed up the eviction process and will result in an increase the number of evictions. If the government is serious about not wanting more evictions, it should re-consider introducing the absolute ground for possession and consider other, better, ways of speeding up the eviction process, such as improving the efficiency of the county courts.