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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 09/07/2002
Waverley's Response to the Government's Consultation Paper on Tackling Anti-Social Tenants



The Government has published this consultation paper in order to further combat the misery and disruption caused by anti-social behaviour and is keen to ensure that social landlords have the means to deal swiftly and effectively with this minority of tenants who cause a nuisance, and their associates.

The consultation paper, produced by the DTLR, focuses on three fundamental themes – enforcement, prevention and rehabilitation – in order to tackle the problem effectively. The document is about landlord action to stop anti-social behaviour.

The consultation paper is, most importantly, seeking the views of social landlords to enable the tackling of anti-social behaviour to be more effective and to make a real difference.

This report examines the Government’s proposals and options and sets out Waverley’s response to these. The deadline for responses from social landlords is 12th July 2002.
Annexe 2

WAVERLEY BOROUGH COUNCIL

MEMBER/TENANTS' SPECIAL INTEREST GROUP – 24TH JUNE 2002



Title:
WAVERLEY’S RESPONSE TO THE GOVERNMENT’S CONSULTATION
PAPER ON TACKLING ANTI-SOCIAL TENANTS
[Wards Affected: All]


Summary and Purpose

The Government has published this consultation paper in order to further combat the misery and disruption caused by anti-social behaviour and is keen to ensure that social landlords have the means to deal swiftly and effectively with this minority of tenants who cause a nuisance, and their associates.

The consultation paper, produced by the DTLR, focuses on three fundamental themes – enforcement, prevention and rehabilitation – in order to tackle the problem effectively. The document is about landlord action to stop anti-social behaviour.

The consultation paper is, most importantly, seeking the views of social landlords to enable the tackling of anti-social behaviour to be more effective and to make a real difference.

This report examines the Government’s proposals and options and sets out Waverley’s response to these. The deadline for responses from social landlords is 12th July 2002.



Background

1. The consultation paper is a comprehensive document. It sets out in Section 1 to review Enforcement and Eviction in two parts: firstly, Landlords and Current Legislation and secondly, New Approaches. It is this section which seeks the views of social landlords on certain proposals. Section 2 looks at Prevention whilst Section 3 looks at Rehabilitation.

2. In addition, the document publishes Good Practice Notes on measures currently available to social landlords; a model policy statement on anti-social behaviour for social landlords; publicity; and developing witness capacity.

3. There is also some information contained in the consultation paper’s annexes regarding research and the Law Commission’s current review of housing tenure law. The review is looking to establish a single form of tenure for the social housing sector and a standard short term tenancy for the private rented sector.

4. A copy of the consultation paper is available in the Members’ Room.


Human Rights Implications

5. The impact of this document has some implications for Human Rights. The Council, in all its dealings with anti-social tenants, as well as County Court Judges in dealing with cases brought before them, have to balance the human rights of the individual with those of the community affected by the activities of the disruptive few. In most cases the human rights of those affected by anti-social behaviour will far outweigh those perpetrating the nuisance. However, the human rights of all parties must be acknowledged.

6. Information regarding anti-social behaviour is handled in confidence and stored in secure and confidential files. Information sharing between agencies is essential and follows the conditions contained in the Crime and Disorder Act 1998 (Section 115) and in accordance with the Data Protection Act 1998 (Section 29) and the Human Rights Act 1998.

Community Safety Implications

7. Dealing with anti-social behaviour cannot be undertaken in isolation and landlords have been increasingly directed towards multi-agency working as a means to achieving successful prevention of anti-social behaviour. Waverley Community Safety Executive recently established a multi-agency Community Incident Action Group (CIAG) to work together to deal with issues of community safety and crime and disorder (reported to the last meeting of the SIG).

8. Local authority service departments are enjoined by Section 17 of the Crime and Disorder Act 1998 to consider how the way they work will impact on crime and disorder, and to do all that they reasonably can to prevent crime and disorder in their area.

9. It is pleasing to note that the local performance indicators on tenant anti-social behaviour produced by Waverley’s Housing Services, has been posted on the Surrey Community Safety Unit’s website as an example of best practice.

10. In responding to the Government’s consultation paper on tackling anti-social tenants, the proposals and options to be considered are all aimed to speed up processes and to assist in tackling anti-social tenants more effectively.

Resource/Environmental Implications

11. There are no immediate resource or environmental implications.

The List of Proposals

12. The consultation paper lists the proposals put forward by the DTLR and includes the Government’s preferred proposals. The paper also includes a number of other options which may be considered but which do not currently have Government support.

13. The aim of these proposals is to meet the reasonable expectations of the majority of residents for peace and quiet and this must be a priority for action by landlords on anti-social behaviour.

Alternative 1: Permanent extension of an introductory-tenancy-type regime, for anti-social behaviour only, to all secure and assured tenancies

Alternative 2: Demotion of individual tenants to an introductory-type tenancies

Alternative 3: Order for immediate possession to be available at the breach of injunction hearing

Other Options: Break clauses
Other Options: Making anti-social behaviour a mandatory ground for possession

Restricting court discretion in certain circumstances

A statutory definition of housing-related anti-social behaviour

The Proposals

14. Although every local authority is required under Section 17 of the Crime and Disorder Act to do all they reasonably can to prevent crime and disorder in the way they carry out their other duties, there is no specific duty on landlords to tackle anti-social behaviour.

15. There have been calls for such a duty to be imposed, but no court cases attempting to enforce this have succeeded.

GOVERNMENT PROPOSAL:

Establish a duty to publish anti-social behaviour procedures

16. This could be done by legislation establishing a statutory duty. Another option would be to encourage social landlords to include in their tenancy agreements the reasonable steps they would take:- assess the seriousness; investigate; respond accordingly.

Advantages:-

Landlords would have to consider the management of anti-social behaviour. It would make it easier to monitor the performance of landlords on anti-social behaviour. Tenants would feel more confident in asserting their rights if there was a clear statement of the landlord’s policy and procedures. Even if such a duty were difficult to enforce, it would change the context in which litigation touching on anti-social behaviour would be considered.

WAVERLEY’S VIEW:

17. This is a positive step forward and one towards which Waverley is currently working by updating existing procedures. It will give tenants confidence and allow an understanding of the step by step stages as well as an overview of the process. This will provide tenants with the opportunity to consider any options and express their own views within the process. The procedure can be worked into the forthcoming Tenants Handbook.

18. However, it is important that the procedures should not be too prescriptive but allow a degree of flexibility in order to reflect prevailing local conditions. It is just as important to ensure that the procedure is comprehensive and inclusive.

19. As part of the Housing Act 1996, local authorities were given discretion to adopt the Introductory Tenancy regime. This is a tenancy which only allows a full secure tenancy after an introductory period of one year. This allows the landlord to reach a decision to end a tenancy for anti-social behaviour within the first year of the tenancy on the basis of their own investigation process. The court then checks that the landlord has followed the appropriate legal procedure (e.g. in informing tenants of their right to a review of the decision) before granting the order for possession.

20. Landlords have to follow a reasonable process in reaching their decision. They have to give consideration to the views of complainants and of alleged perpetrators. There has to be a mechanism for an internal review process of the decision if one is requested by the alleged perpetrator. The tenant can challenge the decision through judicial review if the tenant feels the process has not been properly carried out.

21. These types of schemes have several advantages:-

Landlords are able to make their own arrangements for taking evidence (consistent with the rights of those accused of anti-social behaviour) to encourage witnesses to feel safe. This can include the provision of evidence by staff on behalf of witnesses who wished to remain anonymous. The staff would be available to alleged perpetrators for cross-examination. The landlord is certain to get a possession order, as long as it had followed the correct procedure. Court hearings are very much shorter since the court does not have to consider evidence of anything other than the landlord’s compliance with the requirements of the statute.

GOVERNMENT PROPOSAL:

Alternative 1: Permanent extension of an introductory-tenancy-type regime, for anti-social behaviour only, to all secure and assured tenancies.

22. A similar type of scheme to the introductory or starter tenancies regimes described above could be applied to all secure and assured tenancies, on a permanent basis. This would apply only to anti-social behaviour.

Advantages:-

The advantages listed above for introductory and starter tenancies could apply throughout tenancies, not just in the first year. This alternative might provide much-needed respite for neighbourhoods under pressure from particularly vicious anti-social behaviour. Tenants may be prepared to see a reduction in the security of their tenure in return for safety, peace and quiet.

Disadvantages:-

The burden of ensuring compliance with all relevant human rights and administrative law requirements would fall on the landlord rather than the courts. There could be an increase in challenges by way of judicial review in the High Court. At present, possession proceedings are in the County Court, which is more local and therefore more accessible to tenants.

WAVERLEY’S VIEW

23. Waverley does not currently operate an introductory tenancy regime. This was considered following the Housing Act 1996, but not adopted. This is mainly, as with a great many other local authorities, because it applies to all new tenancies regardless of the tenant’s circumstances such as age or health. This, in effect, penalises all tenants in order to target a few disruptive, anti-social tenants and could therefore be considered to be unfair on the majority of tenants. The regime may also require a greater amount of administration for the landlord.

24. In addition, disruptive anti-social tenants may not be particularly bothered about having an introductory tenancy rather than a full secure tenancy as they may consider obtaining any tenancy as a bonus, thereby losing nothing (if they have come through the homelessness route or from temporary accommodation) and therefore the incentive to behave may not be as great as losing something.

Alternative 2: Demotion of individual tenants to an introductory-type tenancy.

25. Under this proposal, those tenants who had been engaged in anti-social behaviour could be “demoted” to an introductory-type tenancy.

26. This could operate in two ways:-

With recourse to the courts: This would apply if landlords had already secured an injunction against the defendant on grounds of anti-social behaviour, and the tenant had breached it.

At the court hearing for the breach of the injunction, the landlord would be able to request a demotion, which the court could grant. If further anti-social behaviour followed, the landlord would be able to take the decision to evict, in a similar way as under the current introductory tenancy regime. The landlord would also be able to request an immediate eviction at the breach hearing (see Alternative 3 below).

Without recourse to the courts: social landlords would be able to demote a tenant to an introductory-type tenancy without the need to first obtain an injunction. They could then take the decision to evict, in a similar way as under the current introductory tenancy regime.

Demotion with recourse to the courts derives from ideas that the Law Commission is working on, as part of their wider review into reforming housing tenure law (more about this is contained in the consultation paper Annexe 2).

This is a much more targeted sanction than Alternative 1. The majority of tenants would be unaffected.

WAVERLEY’S VIEW

27. This seems to be a much fairer proposal than Alternative 1 as anti-social tenants can be targeted, without other tenants having to be included in an introductory-type regime. This proposal would also be more effective for anti-social tenants who would lose something, rather than not gain something as in Alternative 1. This demotion can become the first stage towards eviction and anti-social tenants should be encouraged to view this as such.

28. There may be a way of incorporating this alongside the use of Acceptable Behaviour Contracts where a breach of the contract could lead to a demotion to an introductory-type tenancy, as an addition or an alternative to serving a Notice of Seeking Possession.

29. The detail of this introductory-type tenancy is not very clear, but perhaps it could have a similar effect as a Suspended Possession Order where certain rights are removed (loss of security of tenure), to be restored after an elapse of the specified time, provided no further incidents of anti-social behaviour occur.

30. The question remains of who would decide the length of time the demotion would take effect. Presumably, where the courts are involved, the landlord would recommend a period of time and the court would then act on this or impose a different length of time. Where there is no recourse to the courts, perhaps there could be a defined, prescribed length of time e.g. two years. This would naturally require an administrative tracking device to ensure compliance.

Alternative 3: Order for immediate possession to be available at the breach of injunction hearing.

31. This alternative would allow landlords to request, and the court to grant, an order for immediate possession, where there was a breach of the injunction.

32. This alternative derives from ideas that the Law Commission is working on, as part of their wider review into reforming housing tenure law.

33. It would be possible to evict anti-social tenants very quickly, while still ensuring that there have been findings of fact by the court.

WAVERLEY’S VIEW

34. This would be a useful fast-tracking method for cases where an injunction has been breached, especially where the anti-social behaviour has become more serious since obtaining the injunction and eviction becomes the only realistic solution. This remedy could be used in conjunction with Alternative 2 where the anti-social behaviour becomes very serious.

35. The officers' recommendation is to favour Alternative 2 but to use Alternative 3 where the anti-social behaviour becomes worse leading to the breach of the injunction and a speedy eviction is the only viable remedy, the justification being the need to retain for the landlord a degree of flexibility to fast-track cases that have become more serious.

Option: Break clauses.

36. A local authority has put forward the possibility of introducing a form of tenancy which would, every two years, be reviewed and renewed if the conduct of the tenancy had been acceptable and not renewed if the landlord had evidence of persistent or serious anti-social behaviour.

WAVERLEY’S VIEW:

37. This looks an attractive option but it could be bureaucratic to administer. Also who would review the cases and what criteria would be used to make decisions? What appeals process would be put in place? Would the criteria be discretionary? Would the criteria be local or universal? Tenants in this position would inevitably compare their case to other local cases, so the reviewing body would have to be very clear in making judgements, and have very clear guidelines and criteria, in order to prevent an endless round of appeals.

38. Part 55 of the Civil Procedure Rules, which came into effect on 15th October 2001 changed many aspects of county court procedures in order to speed up housing possession cases where violence was used or threatened.

39. Because of built-in delays caused by court procedures, especially the length of time to process appeals, witnesses in these cases felt vulnerable and anxious because the perpetrator still remained in the property. Delaying tactics by the anti-social tenant prolonged the intimidation felt by local residents giving evidence.

39. Currently, permission to appeal can be dealt with either by an oral hearing, or simply by a judge considering the papers.

GOVERNMENT PROPOSAL

Applicants for appeals to require an oral hearing where anti-social behaviour is involved

40. In cases involving threats, violence, harassment or intimidation, requests for permission to appeal would have to be dealt with at an oral hearing, which both parties would be able to attend.

41. An oral hearing would allow either party to make the judge aware of things they would like taken into account when the timetable for the appeal is set. For example, the original applicant for the Order could highlight difficulties in sustaining and protecting witnesses.

42. At the moment, where the request for permission to appeal is granted without an oral hearing, the parties have to go back to court afterwards if they wish to apply to change the appeal timetable. This proposal would therefore streamline the appeals process by avoiding this extra stage.

WAVERLEY’S VIEW

43. The officers welcome any part of the process which speeds up court procedures, reduces the length of time witnesses have to endure stress and anxiety, as well as providing an opportunity for the full facts, especially regarding more recent events that have arisen since the original application, to be placed before the judge.

44. Some concern has been expressed by several social landlords regarding the need for more certainty in the outcome of court judgements for anti-social behaviour. Although the Joseph Rowntree Foundation found in a survey in 2000 that this was not an issue for judges, the uncertainty experienced by social landlords and witnesses does appear to affect their confidence in the system.

45. The failure of the court to grant an order can create a worse situation out on the estate, where the perpetrator of anti-social behaviour then feels immune to legal proceedings and the anti-social behaviour then continues or even worsens. This can lead to a demotivation in landlords and residents from engaging the legal process.

GOVERNMENT PROPOSAL:

Structured discretion for judges in housing possession cases

46. Certainty of outcome could be increased by structuring the discretion which judges have when deciding whether to grant a possession order, and whether to suspend it.

47. Structured discretion could take two forms:-
It could provide that an order be granted unless one or more of a specific list of factors applied, for example, that one of the grounds of Article 8 of the European Convention of Human Rights had not been met.

Advantages:-

This could increase the likelihood of securing the order. It would also assist judges who are unfamiliar with housing law.

Disadvantages:-

It may be difficult to draw up any fair, comprehensive, and reasonably specific list of things which should be taken into account. Judges may be unhappy with any curtailment of their freedom to use their discretion to decide the outcome of a case.

WAVERLEY’S VIEW

48. It is felt that some structured discretion of judges would place the landlord and the residents on a more confident footing and dispel some of the uncertainty that is experienced. This could help some judges who are not experienced in dealing with anti-social behaviour in housing.

49. However, if the discretion was too structured, cases may fail due to technicalities in procedures rather than any lack of evidence. This may be more likely if the defendant was represented and the defence, due to strong evidence of anti-social behaviour, tried to obtain a suspension because of a technicality in the structured discretion criteria. This makes it imperative that any list of things required to be taken into account, should be fair, comprehensive and reasonably specific without being too prescribed. Judges must be allowed to exercise a fair degree of discretion.

Option: Making anti-social behaviour a mandatory ground for possession

50. This would remove discretion from the judge in cases where anti-social behaviour of a serious or persistent nature was proved. It would be important to ensure that the regime for obtaining possession remained compliant with human rights and general administrative law requirements so that possession orders would only be made where the behaviour complained of was serious or persistent and that eviction was a proportionate response.

Advantages:-

It would increase the confidence of landlords in making applications. It would assist in getting witnesses to come to court.


Disadvantages:-

There would be a loss of flexibility as the judge would not be able to respond to the individual circumstances of the case.

WAVERLEY’S VIEW

51. This would appear to remove uncertainties in serious anti-social behaviour cases and allow landlords to obtain possession orders in a more straightforward way. However, because judges would lose some flexibility, there may be a compensatory increase in the landlord’s burden of proof required to secure eviction, making it more difficult to obtain an order, especially if witnesses felt intimidated. Judges may be inclined to grant the defendant an adjournment, prolonging the process and resulting in stress and anxiety for residents.

Option: Restricting court discretion in certain circumstances

52. The ability to suspend a possession order could be restricted in some circumstances, for example, where an injunction to restrain anti-social behaviour has previously been granted and breached.

53. The absence of such an option (in the absence of a mandatory ground) might mean that the judge does not grant any order at all because they would want proof of more serious or persistent behaviour to grant possession outright.

WAVERLEY’S VIEW

54. Some flexibility is important and in the absence of any mandatory ground for possession, a restriction on the ability to suspend an order would be advantageous to landlords, but the danger that the judge would not grant any order must be carefully considered. Clear guidelines would be essential, balanced by some discretion to take account of individual circumstances.

Option: A statutory definition of housing-related anti-social behaviour

Advantages:-

A statutory definition would make it clearer for landlords and tenants and provide the courts with a guide as to what types of behaviour were regarded by Parliament as anti-social behaviour for any specified purposes.

Disadvantages:-

In order to be of value, the definition would have to be framed in particular and comprehensive terms. This would create a lengthy definition if it was to be inclusive. A definition would lessen the flexibility of courts and landlords to deal with any behaviour which is anti-social but not included in the definition.

55. There is no widely agreed single definition of anti-social behaviour. Any definition should cover the possibilities of both very serious incidents and those persistent lower levels of nuisance which can also destroy residents’ peaceful enjoyment.


56. However, the Housing Act 1996, Crime and Disorder Act 1998 and the Chartered Institute of Housing’s Good Practice Briefing all contain definitions which are valid, comprehensive and are used daily by landlords in housing possession proceedings.

57. The Housing Act 1996 includes the following anti-social behaviour ground for eviction where:-

“The tenant or a person residing in or visiting the dwelling house:-

(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or (b) has been convicted of:-
(ii) an arrestable offence committed in, or in the locality of, the dwelling house.”

58. A separate clause identifies domestic violence as being an anti-social behaviour ground for possession.

59. The definition contained in the Crime and Disorder Act 1998 for use in considering Anti Social Behaviour Orders is as follows:-

“That the person has acted … in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household.”

60. The Chartered Institute of Housing’s definition is:-

“Behaviour by others that unreasonably interferes with people’s rights to the use and enjoyment of their home and community.”

WAVERLEY’S VIEW

61. The definition currently in use is adequate in dealing with legal proceedings for housing possession cases. To create a further statutory definition could undermine existing perceptions and cause confusion. Any new definition is likely to be too specific and lengthy, making the definition too “tight”, allowing too much emphasis on the detail of words rather than concentrating on the deeds. It is better to leave the definition reasonably loose and all-encompassing, allowing some discretion to suit particular cases rather than being too detailed, giving rise to the possibility of loopholes. Local authorities have to present their case to judges “on the balance of probabilities” and to achieve this the existing definitions are compatible with these aims.

62. Another aspect of a prescribed, universal definition would be to disregard the local perspective and equate two completely different environments as being uniform. For instance, a low level anti-social behaviour in one area may represent for residents in another area a very serious incident.

63. The Housing Act 1996 introduced a new statutory basis for local authorities to obtain injunctions in the county court. They can apply to both adult tenants and non-tenants, but may only be granted if the perpetrator has used or threatened to use violence. The provisions of the Act can exclude perpetrators from particular locations relating to the local authority’s residential premises and its locality.

64. An injunction can have the power of arrest attached to it by the court, if the court is satisfied that the perpetrator is “engaging or threatening to engage in conduct causing or likely to cause a nuisance or annoyance a person residing, visiting or otherwise engaging in a lawful activity in the locality” and that there is a “significant risk of harm to that person … if the power of arrest is not attached.”

65. The exercise of the power of arrest for a breach will depend largely on the quality of the working arrangements between the landlord and the police.

66. Landlords have sought consideration to extend this provision to include non-residential premises. This could include premises providing services in the locality.

67. Also landlords have asked for consideration to be given to cases other than those in which violence is used or threatened, to include hate-behaviour such as racist or homophobic as well as behaviour targeting the disabled, elderly and other vulnerable groups.

GOVERNMENT PROPOSAL:

Extend the powers of the court to grant injunctions

Proposal 1

68. Extend the powers of the court to grant injunctions with power of arrest excluding non-tenants from non-residential premises.

Proposal 2

69. Extend the powers of the court to grant injunctions which have a power of arrest attached in cases where there is no threat of violence.

Advantages:-

Protection for service providers and those targeted by hate-behaviour

Disadvantages:-

Blurring the focus of what are currently very precisely targeted sanctions. Police resources would be diverted from dealing with violent and threatening behaviour to an engagement in more widely defined anti-social behaviour.


WAVERLEY’S VIEW

Proposal 1

70. Any provision that helps to protect local authority employees and anyone else visiting council premises from violent customers, whether tenants or not, would be welcomed. In addition to council offices and locality offices, a provision of this type could assist contractors, community rooms, meeting rooms and other premises where the authority may carry out its business.

Proposal 2

71. Anti-social behaviour can be malicious and damaging even when violence is not used or threatened. To vulnerable groups such as the elderly, disabled or those with mental health problems, the effects of prolonged hate-behaviour can be especially harmful. This hate-behaviour could include poisonous letters, graffiti, items put through letterboxes, verbal abuse etc.

72. Currently this form of anti-social behaviour, although extremely unpleasant and damaging, is unlikely to be regarded as violent and as such a court would be unable to grant an injunction with power of arrest.

73. Extending the powers of the court to grant injunctions with power of arrest to this type of anti-social behaviour would send a clear message to the perpetrators and a serious gap in the anti-social behaviour toolkit would be addressed.

74. The current thinking on moving anti-social tenants to another property is that it is not an appropriate method if dealing with anti-social behaviour, and that it is better to deal with the problem in the existing location.

75. However, there may be circumstances in which it may be beneficial to move the perpetrator to another location. This could be to break up groups of anti-social tenants or to remedy the results of an inappropriate letting. There would need to be a clear expectation that moving the perpetrator would improve the behaviour, rather than just shift the problem. The transfer could be accompanied by an injunction preventing the tenant returning to the original locality and prohibiting anti-social behaviour in the new one. It could be combined with a reduction of security of tenure.

GOVERNMENT PROPOSAL

Compulsory transfer of perpetrator to alternative accommodation

76. If an injunction were granted against a secure or assured tenant, and then breached, the landlord at that hearing would be able to seek, and the court to grant immediately, a transfer of the tenant, possibly along with demotion.

77. This option derives from ideas that the Law Commission is working on, as part of their wider review into reforming housing tenure law.


Advantages:-

Immediate action is taken to give neighbours and witnesses relief from the behaviour. A change of location may make it easier for the perpetrator to change their behaviour.

Disadvantages:-

The scheme’s use in particular cases would have to be weighed against the likely impact on neighbours in the new area, even if there were sound reasons for thinking the transfer itself would improve the behaviour of the perpetrators. Transfer would have disruptive effect on the tenant and members of the tenant’s family. It may interrupt support work that is being carried out with the tenant.

WAVERLEY’S VIEW

78. This remedy could be very effective in some cases, but would only be a suitable response in very particular instances. In the vast majority of cases, this remedy would not be appropriate as it may be seen, particularly by tenants, as being a soft option although the residents living in close proximity to the perpetrator would find this a speedy solution and offer quick relief.

79. Circumstances where compulsory transfer could be considered are:-

Where anti-social tenants find themselves living in the vicinity of other anti-social tenants. This could be a recipe for incidents of serious disturbance where the two or more households fall out with each other and other residents become caught in the crossfire. Alternatively, the two or more households could form an alliance causing widespread nuisance or one household of anti-social tenants may prey upon a weaker family in the vicinity and adversely influence members of it, causing them possibly through peer pressure (particularly impressionable youngsters), to join in their anti-social behaviour and thus create conditions likely to cause a decline in the area. Where an inappropriate letting has led to problems (as above), possibly due to circumstances not apparent at the time, for instance, where the letting has allowed someone to move close to someone with whom they have fallen out for some reason (family feud, estranged family member etc.) Where someone with a drug abuse problem or recovering from substance misuse, is living in an area where other local drug users or drug dealers are living or operating. Any decision to use compulsory transfer powers would require close co-operation with other agencies. Where low level but persistent anti-social behaviour is causing two clashing neighbours to affect others in the vicinity.

80. The possible dangers of a policy including compulsory transfer include:-

Moving a tenant to another area may simply transfer the problem to cause a nuisance somewhere else and require a legal recourse that may have been more appropriate in the first place. Judges may view this option as attractive, especially where the perpetrator may have young family members and the judge may be reluctant to grant a possession order. It would be important that the landlord, when recommending to the court this course of action, provides the judge with strong and valid reasons why this approach would be advantageous to all concerned parties, not least the community to which the perpetrator may be transferred. It is essential to demonstrate that the move would not be counter-productive.

81. Crime and Disorder Partnerships were introduced by the Crime and Disorder Act 1998. The police and the local authority are required to conduct an audit of crime and disorder in their area and to draw up a strategy to reduce it. As part of this they are required to invite the participation of at least one of each type of groups of agencies prescribed by the Secretary of State. RSLs form one of these groups.

82. There is nothing in the Act preventing the involvement of RSLs, nor requiring the partnerships to consult with RSLs.

GOVERNMENT PROPOSAL

A requirement on Crime and Disorder Reduction Partnerships to invite the participation of an RSL representative

83. Clearly in areas where there were many RSLs operating it would not be possible to include all of them.

84. Moreover, in circumstances where an individual RSL had stock in many Crime and Disorder Reduction Partnership areas they would not wish to attend all of them.

85. The proposal is therefore for representation by an RSL on behalf of RSLs within the partnership area.

WAVERLEY’S VIEW

86. RSLs are valuable partners in the crime reduction and prevention process, especially where an RSL and the local authority own properties in close proximity or are mixed on a single estate (e.g. The Chantrys). This is also true where anti-social behaviour groups, such as young people, roam across one estate and spill out into another landlord’s estate. The response to this should be a co-ordinated, inclusive and measured response by both landlords. Attendance of the local Crime and Disorder Reduction Partnership meetings would help achieve a more coherent and detailed assessment of the situation and bring in measures to tackle the situation effectively.

87. Where there are several RSLs operating (as in Waverley), it would be beneficial to include a representative from the local RSLs, rather than all of them. This representation could come from the largest in the area, or could involve a revolving representation for a fixed period (e.g. two years) before a different local RSL is invited to participate. This latter option has the advantage of including all RSLs over time, who can bring different skills and approaches to the partnership.

88. Local authorities and the police are currently able to exchange data via an established and secure means, in order to obtain information to enable a local authority to take effective action against anti-social tenants or to take legal proceedings under the tenancy agreement for criminal activity.

89. Under data protection legislation, information is restricted and this can be understood to prevent valuable data from being shared and therefore anti-social behaviour and criminal activity not being effectively tackled. This is commonly a problem between RSLs and the police, as well as some local authorities and the police.

90. It is therefore important that clear, agreed protocols about who can share what information, how and when, would greatly assist tackling these problems.

GOVERNMENT PROPOSAL

Establish the status of RSLs for data exchange purposes

91. It would be made clear that RSLs are a “relevant authority” (under s.115 of the Crime and Disorder Act) for the purposes of data exchange.

92. For this to happen they would be made “bodies to consult” rather than “invitees to participate” within Crime and Disorder Reduction Partnerships.

WAVERLEY’S VIEW

93. As an area containing several RSLs and having good relations and partnerships with them, this proposal is welcomed as being an important step forward in clarifying and extending the data exchange protocols, and therefore being able to deal with anti-social behaviour more effectively.

94. There is no doubt that having the relevant protocols in place such as the Information Sharing Protocol that currently allows Waverley to seek information from the police (and vice versa) about tenants and events taking place at Council-owned properties, has greatly enhanced the ability to deal more effectively with many forms of anti-social behaviour, particularly those that involve the police.

95. Placing RSLs on a similar footing by including them in the Information Sharing Protocol partnership, would further improve the existing process.

Other provisions in the Consultation Paper

96. There are other provisions in the document which are included, but these are not actively seeking any response or comments from interested bodies.

97. These include:-

Improving the operation of Anti-Social Behaviour Orders (ASBOs) Improved data on possession order actions by social landlords Prevention of anti-social behaviour, including Communicating Your Message, What can Landlords do to Prevent Anti-Social Behaviour?, Partnerships for Successful Prevention Rehabilitation (including the Dundee Families Project) Good Practice Notes on: Measures currently available to social landlords; Model policy statement on anti-social behaviour for social landlords; Publicity: Developing witness capacity; Useful publications Annexes on: Summary of research evidence on anti-social behaviour in social housing; The Law Commission review of housing tenure law; Partial regulatory impact assessment; List of key organisations being consulted.

Conclusion

98. The Government has focused on three fundamental themes in the consultation paper – enforcement, prevention and rehabilitation – and sets out to promote the existing enforcement measures available to social landlords.

99. Having recognised that some landlords who are actively engaging in tackling anti-social behaviour believe that the law could usefully be amended, the proposals contained in the paper seek the views of the bodies being consulted for improving landlord action in tackling anti-social behaviour and lists the Government’s preferred proposals together with other options.

100. The report suggests Waverley’s initial response to the document, based on the knowledge and experience of officers. The views of tenants and members would be welcomed.

Recommendation

It is recommended that tenants and members be invited to consider the Government’s proposals and other options made available in the document, and to review, comment, and put forward suggestions to the Executive with regard to Waverley’s initial response.



Background Papers (DoH)

Crime and Disorder Act 1998
Housing Act 1996
Law Commission Consultation Paper No 162



CONTACT OFFICER:

Name: Mr C Rudkin Telephone: 01483 523042
e-mail: crudkin@waverley.gov.uk

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