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New ASB guidance - but will there be new eviction powers?
As the government prepares to review anti-social behaviour (ASB) guidance for social landlords, Jason Hobday of Trowers & Hamlins wonders what precisely ministers are planning
On 22 February, Aster Group was heavily criticised in parliament for having failed to take action to tackle one of its households allegedly responsible for anti-social behaviour (ASB) targeted at a neighbouring private owner-occupier.
By reference to Hansard, it is clear Aster was made a scapegoat for the apparent ‘failings’ of social landlords to deal with a minority of anti-social tenants.
“It is unlikely the review will propose the introduction of any new tools for tackling ASB.”
Further, the MP that tabled the debate, Simon Hoare, argued social landlords should owe a duty of care towards victims, where the ASB was caused by their tenants – even going so far as to suggest social landlords should be required to financially compensate victims.
While the specifics of the case were not provided, it was reported Aster was unable to take enforcement action (presumably in the form of a civil injunction) to address the ASB in question because the complainant had not been willing to give evidence in support of such action.
In response to this, Andrew Percy (the clearly well-informed) junior minister at the Department for Communities and Local Government, rightly confirmed that hearsay or professional evidence could have been used by Aster in order to progress court proceedings against the problem household.
In response to the concerns raised during the debate, Mr Percy gave assurances the government is currently reviewing the statutory guidance to frontline professionals on the use of the powers for tackling ASB and that it was likely refreshed guidance would be published by spring 2017.
So, what might the government look to change as part of this review?
It is unlikely the review will propose the introduction of any new tools for tackling ASB, or, given that such problem households are a minority, to implement a wholescale reduction in the security of tenure for social housing tenants so that social landlords could always recover possession using the mandatory route.
The latter would be punishing the majority of well-behaved tenants for the actions of a few.
“The vast majority of social landlords do an extremely good job in tackling complex anti-social behaviour.”
It is however more likely the review will look at ways to speed up the process for recovering possession and to expand on the guidance for taking action where complainants are unable or unwilling (for fear of reprisals or repercussions) to give named evidence.
In respect of speeding up the process for recovering possession, it is difficult to see how this could be achieved given that there is already in place a range of mandatory possession options designed to (where appropriate) expedite the process.
Often the delays are caused not by social landlords failing to act in a timely manner, but by a number of other factors beyond a social landlord’s control, such as overstretched county court diaries and staff, the reduction of legal aid advisors in certain areas and broader funding cuts, increased mental capacity issues with defendants, disclosure requests being delayed or declined (often by the police), the civil procedure possession process requiring certain steps or timescales to be provided, or in fact the need for the process to properly balance the rights of a tenant to defend the allegations against them.
Given the significant implications for social landlords, and the body of sound and logical case law on the point, it is also unlikely the government will look to directly impose a broader duty of care on social landlords for the actions of their tenants, as has been called for by Mr Hoare.
It is, however, more likely the review will look at ways of encouraging greater use of the Community Trigger (see box), by increasing publicity of this under-used tool; and also perhaps at ways of increasing its efficacy by fine tuning this measure to include social housing providers in the list of relevant bodies involved in a case review (rather than them only participating if co-opted), and introducing mechanisms for compelling agencies to take action.
JARGON BUSTER
The Community Trigger: Introduced in the Anti-Social Behaviour Crime and Policing Act 2014, the Community Trigger allows residents to require a statutory agency (including local authorities and housing associations) to carry out a review of their response to complaints of anti-social behaviour.
The trigger applies if a threshold, set locally, is met. A typical threshold is three separate instances of anti-social behaviour reported in the space of six months.
The trigger is intended to prevent victims of persistent ASB from being ignored by the authorities.
It is unclear what form such mechanisms may take, however it would not be inconceivable to see the ability for other agencies (or even possibly victims) to take enforcement action to put a stop to the ASB and nuisance, and to then be able to recover the costs of such action from the social landlord in question.
In undertaking this review the government should not overlook the fact that the vast majority of social landlords do an extremely good job in tackling complex anti-social behaviour with ever dwindling resources, and by working closely with other agencies.
Any changes that are introduced should be designed to enable social landlords to do the good work that they do more easily, rather than punishing them for the limitations of the processes they are required to follow.
Jason Hobday, partner, law firm Trowers & Hamlins
