ASB – The Changing Landscape CIH Midlands Region March 2013 Gail Sykes, Partner Tel: 01733 888794 Email: gail.sykes@buckles-law.co.uk www.buckles-law.co.uk
Possession Proceedings and Proportionality • Summary possession proceedings still open to challenge • The court should follow the guidance in Manchester City Council v Pinnock and Hounslow v Powell • Recent case law includes • Corby Borough Council v Scott [2012] • West Kent HA v Haycraft [2012] • Riverside Group Ltd v Thomas [2012]
Possession Proceedings and Proportionality To avoid a successful challenge: • Follow policy and procedure • Investigate allegations of ASB • Manage the tenant’s expectations • Keep a complete file! • Ensure that independent reviews are available
The Draft Anti-Social Behaviour Bill • Published 13 December 2012 • Has been considered by the Home Affairs Select Committee – which reported on 15 February 2013 • Further amendments likely before consideration by Parliament 2013/2014 • Commencement 2015?
The Draft Anti-Social Behaviour Bill - mandatory possession • NOSP 28 days notice to be served within a year if conviction/breach • Five conditions for possession • Review procedure will be required – ( proportionality challenges likely )
The Draft Anti-Social Behaviour Bill - mandatory possession 1. Conviction of serious offence 2. Breach of injunction 3. Breach of criminal behaviour order 4. Closure order 5. Breach of noise abatement notice
The Draft Anti-Social Behaviour Bill - mandatory possession • Inter-agency communication – convictions • Injunctions – breach must have been proved to the court • More incentive to defend committal proceedings for breach of injunction or to deny serious offences • Judges likely to scrutinise injunction terms very carefully • Undertakings less attractive to housing providers but more attractive to Judges
The Draft Anti-Social Behaviour Bill - new discretionary ground for possession • The tenant, or a person residing in the dwellinghouse (in England) has been convicted of an offence which took place in a riot in the UK • A discretionary ground so that the judicial approach to possession will be interesting
Injunctions to Prevent Nuisance and Annoyance (IPNA’s) The test: • Conduct capable of causing a nuisance and annoyance; and • It is just and equitable to grant the injunction • Without notice injunctions, powers of arrest and exclusion orders still available
Injunctions to Prevent Nuisance and Annoyance (IPNA’s) • Available against those over 10 (Youth Court jurisdiction) • Available to a wider number of agencies (Police, Environmental Health) • Scope may be limited with a proportionality test or the need to show that conduct was intentional or reckless • An attempt to define housing management functions
Recent ASB Case Law Southend Borough Council v Armour [2012] • Termination of introductory tenancy • No further ASB between service of notice and trial • Should the period of good behaviour be taken into account? • Delays (at least in part caused by the defendant’s legal team)
Recent ASB Case Law Birmingham City Council v Ashton [2012] • The judicial approach when considering whether the tenant is likely to cause further ASB is a suspended order is made • The court should consider whether cogent evidence has been produced
Recent ASB Case Law Stafford v Camden LBC [2012] • Considered whether LA must serve a fresh section 128 notice when previous notice relied upon to issue proceedings • Review panel suggested alternative to possession • CA held landlord must give unequivocal confirmation of original decision • Be aware of danger of giving "second chance"
Recent ASB Case Law Wandsworth LBC v Maggott [2013] • ASB not found to be “in the locality ” of Mr Maggott’s home • The landlord could not rely upon tenants’ ASB covenants which were too wide • If the Judge was wrong – it was not reasonable to make an order anyway!
Any questions? ?
ASB – The Changing Landscape March 2013 Buckles Solicitors LLP | Grant House | 101 Bourges Boulevard | Peterborough | PE1 1NG | Telephone: 01733 888888 Buckles Solicitors LLP | 3 St Mary's Hill | Stamford | Lincs | PE9 2DW | Telephone: 01780 484570 www.buckles-law.co.uk enquiries@buckles-law.co.uk Buckles Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority Registered in England No OC311739.
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