In Putting Victims First, the government proposes extending the powers available in respect of anti-social behaviour. In this post, Andrew Arden QC and Justin Bates of Arden Chambers respond.
We were delighted to learn that so many people liked our previous posting. We rather fear that this post may be a bit less popular as we turn to recent proposals for dealing with anti-social behaviour (ASB).
We stress that nothing in this post should be read as in any way minimising the significance of ASB for neighbours and other local residents. We recognise the misery that drug dealing, noise nuisance and the like can and does cause. Our point is, rather, that such behaviour should be recognised and punished as a crime by the criminal justice system, which should be properly resourced to respond to it, rather than distorting housing law or co-opting housing officers to act as police officers. (What is more, policing paid for by local tenants, bearing in mind that local authority housing management activities remain financially ring-fenced and that rent is the principal source of income for all the activities of a PRP).
As you may know, the consultation paper proposes:
(a) amending Ground 2, Sch 2, Housing Act 1985 and Ground 14, Sch 2, Housing Act 1988, to extend the existing discretionary ground for possession to include where the tenant or a member of the household has been convicted of an offence at the scene of a riot, wherever that offence took place in the UK; and,
(b) introducing a new mandatory ground for possession to be available where:
(i) a tenant or member of his household or visitor has been convicted of a serious offence in the locality;
(ii) a Crime Prevention Injunction has been breached;
(iii) a Community Protection Order (Closure) has been granted; or,
(iv) a tenant or member of the household – or a visitor – has been convicted for breach of a noise abatement notice.
This will apply not only in social housing but across rented housing generally.
Housing as a tool of social control
Our fundamental objection to these proposals is that they seek to use housing law as a tool of social control in the same way that the criminal law is, with security of tenure to be taken away for reasons which can be entirely unconnected with the occupation of a particular property or even with the use of any property as housing or whether housing is needed.
Of course there have long been grounds for possession relating to how housing is used, recognising too that when ASB takes place in the neighbourhood, it can be said to relate to use of the property, but here we are talking about the possibility of eviction because, eg
- a tenant’s child commits a rioting offence in a different town,
- a member of the household commits an offence unrelated to use of the property somewhere else in the locality,
- a tenant or household member is made subject to a crime prevention injunction for reasons that have nothing to do with use of the property and could relate to conduct anywhere in the country,
- a tenant or household member is convicted for breaching a noise abatement notice in relation to property anywhere, even commercial (eg, a club).
All but the first of these is not subject to a judicial decision on ‘reasonableness’, only the considerably higher hurdle of ‘proportionality’.
Punishing the innocent
‘The loss of one’s home is … not even something which a criminal court can impose by way of sentence …’: Portsmouth v Bryant (2000) 32 HLR 906, CA. ‘The principal tangible loss suffered by the plaintiff was that he was deprived of the tenancy of a flat protected by the Rent Acts, and in the circles in which these parties move possession of such a flat is one of the most significant rights of property that any of them ever see in their lives’, per Widgery LJ in Mafo v Adams  1 QB 548.
The idea that the punishment of eviction can extend to the family of a criminal, even in relation to conduct unconnected with the home, is offensive. In criminal law, one person of full age and capacity cannot usually be held to be responsible for the acts of another (see, eg R v Kennedy  UKHL 38). Why does that apply with less force to social housing?
Under the proposals, a tenant in, for example, Wandsworth would be at risk losing his or her home because, say, a child is convicted of rioting in Warrington or of assaulting someone in a pub across town. Yet an owner-occupier (including a long leaseholder under RTB (Right to Buy)) could not lose the home for the same reasons. The proposals create a two-tier citizenship where only some are susceptible to punishments from which others are exempt. Coupled to other new developments, in particular the flexible tenancy, social housing tenants will now have to demonstrate a continued moral entitlement to accommodation through continued good behaviour.
Role of the housing officer
The reforms also continue the change in the role of the housing officer that has been taking place since the introduction of Anti-social Behaviour Injunctions (ASBIs) in 1996, about which concern has often been expressed – see various editorials and articles in the Journal of Housing Law. In particular, see Dock Green Estate – Housing Officers or Police Officers?(£)
Housing officers have a partially welfare role. That was fundamental to the origins of social housing and remains the reality. It is why the social housing sector does not, and is not expected to, evict as soon as arrears arise or a tenancy is breached. To fulfil this role, they need to be trusted by tenants. If the tenant is in rent arrears because a partner is no longer working, having recently been sentenced to a term of imprisonment for an offence committed in the locality, will the tenant explain this to the officer who, armed with the knowledge, will then have grounds for seeking a mandatory possession order?
Moreover, housing officers will commonly be under pressure to evict those convicted of, at any rate certain types of, offences for reasons entirely unrelated to any rational housing policy but which lie, essentially, in the increasingly populist agenda pursued by tabloids and (many) politicians alike.
Is this really how we want to see housing used; is it really what housing policy and housing law are about?