Update on Anti-Social Behaviour Robert Harrap

1. Update on Anti-Social BehaviourRobert Harrap 30th June 2010

2. Recent Cases 30th June 2010

3. Heron v Plymouth CC [2009] EWHC Admin The Appellant had repeatedly breached an ASBO made in 2004. Plymouth County Council sought to extend the scope of the ASBO including an exclusion from the city centre, given that the nature of eight breaches involved theft from a number of shops.

4. The court upheld the exclusion but set aside a general prohibition (‘not to behave in any way causing or likely to cause harassment, alarm or distress’) because it lacked specificity. A further prohibition, which was designed to make the appellant prove he had lawfully purchased goods in his possession, was removed by the court as even the presiding judge (Lord Justice Moses) found it difficult to comprehend. He comments: “it has an unpromising beginning if I cannot understand it.”

5. R v James Lima [2010] EWCA Crim 284 An anti-social behaviour order, which was made on the court’s own motion and based on hearsay evidence was quashed because the relevant requirements of the Criminal Procedure Rules 2005 pt 50 had not been met, in that no written evidence had been served on the Defendant and therefore there was not sufficient opportunity for him to mount any challenge.

6. The Defendant was a failed asylum seeker from Sierra Leone and was currently serving a sentence for supply of a Class B drug. There was a prospect that the Defendant would be deported upon release and therefore the question of necessity of the ASBO was left wanting.

7. Shane Barber v Croydon London Borough Council [2010] EWCA Civ 51 Mr Barber appealed against an outright possession order which was made on the basis of an assault on a caretaker working for the Claimant. Mr Barber has mental health problems and is learning disabled. Croydon LBC argues that despite the fact the incident was an isolated one, it was nevertheless essential to obtain the outright order.

8. The Court upheld Mr Barber’s appeal as it considered that the decision was one which no housing authority, upon the facts, could have reasonably taken. Despite the seriousness of the assault, it had failed to take into account its own policies by not consulting the integrated mental health service or considering whether there were any alternative measures that could be used to prevent any further, similar behaviour.

9. Dee Thomas-Ashley v Drum Housing Association Ltd [2010] EWCA Civ 265 In this case the housing association obtained possession of the premises where the Defendant had refused to remove her dog, despite there being a ‘no pets’ clause in the head lease of the building. The assured tenant, Ms Thomas-Ashley, a bipolar sufferer, argued that her dog Alfie (a Jack Russell border cross) was her ‘reason to get up in the morning’.

10. Ms Thomas-Ashley advanced that section 24D of the Disability Discrimination Act 1995 applied, whereby it was unlawful for a controller of let premises to have a practice or procedure which made it ‘impossible or unreasonably difficult’ for a disabled person to enjoy the premises

11. The court dismissed the appeal for several reasons. Alfie was not a guide dog and she did not need a dog to reside at the premises. Furthermore a finding of fact had been made in the lower court that the dog persistently barked. Most importantly, the housing association could not alter the tenancy conditions to suit her as this would have prompted forfeiture of their own lease by the head lessor, which would not be reasonable in the circumstances.

12. Joseph v Nettleton Road Housing Co-op Ltd [2010] EWCA Civ 228  There was no security of tenure. There was a tenancy prohibition on pets without consent of all other co-op members. The tenant kept a Staffordshire Bull terrier. Other tenants had objected to the dog. The landlord served a Notice to Quit and a possession order was made

13. The Court of Appeal held: The termination clause had to be construed as requiring that a tenant should be given a reasonable time to remedy any breach of covenant before a notice to quit was served. However, a tenant who had had seven weeks to remedy the breach, without making any proposal to remedy it, before the notice was served, had been given an adequate period to comply.

14. Manchester CC v Pinnock & Anor [2009] EWCA Civ 852 A council tenant of 30 odd years was subject to a demoted tenancy following incidents of ASB by his family (but not him). Following further incidents of ASB by his children, the council applied for possession and the tenant argues that (a) the statutory scheme of review was incompatible with his Article 6 rights, as it was not before an impartial tribunal and (b) any such review should be on the basis of the proportionality test under Article 8(2) as opposed to being restricted to domestic judicial review grounds.

15. The CA held that the Court could not review the substance or rationality of a landlord’s decision to terminate a demoted tenancy when considering the making of a possession order pursuant to s143D Housing Act 1996; the Court’s review was restricted to considering whether the procedure under s143E-F of the Act had been followed. In any event, recovering possession under the demoted tenancy regime is a two stage process and the whole process must be considered if a landlord’s position is to be fairly assessed.

16. When a demotion order is made the Court has found the removal of security a proportionate response to the misconduct alleged and very little is needed to justify the landlord’s later decision to recover possession. On a judicial review of the decision, the test was whether the decision was one that no reasonable person could consider justifiable. Listed before a 9 member panel of the Supreme Court for hearing on 5th – 8th July 2010.

17. Metropolitan Housing Trust v Hadjazi [2010] EWCA Civ 750 The Court of Appeal’s judgment was handed down on 1st July 2010, allowing MHT’s appeal. This appeal concerns the construction of Ground 14A of Schedule 2 of Housing Act 1988, the domestic violence ground for possession. Mr Hadjazi occupies a four bedroom property alone, his wife and children having been re-housed by social services following a catalogue of domestic violence incidents. MHT failed to secure possession in Croydon County Court and appealed.

18. The question before the Court of Appeal was whether Ground 14A was made out, given that at the time that the wife and children were re-housed, Mr Hadjazi was excluded from the matrimonial home by an injunction made in family law proceedings. Ground 14A provides: ‘The dwelling house was occupied … by a married couple …. and …. one partner has left the dwelling house because of violence or threats of violence by the other towards that partner…’

19. HHJ Ellis had found that the violence and threats of violence that caused the wife and children to leave occurred not while they were living as a couple at the property but after Mr Hadjazi was excluded and living temporarily elsewhere. Mummery LJ stated:  "Why should the timing of departure from the property by the victim of the violence make any difference to the availability of that ground of possession to the landlord? Why should the perpetrator of the violence be protected against the ground because the violence did not drive the victim out of the property until after the perpetrator of continuing violence has left?"

20. The case has been remitted for a decision on reasonableness to be decided by a different circuit judge, in the light of the court’s guidance on the construction of ground 14A.

21. TSA Introduction of Tenant Services Authority (TSA) on 1st April 2010 . The regulatory framework for social housing in England from April 2010 set out six new standards for social housing, including under the heading ‘Neighbourhood and Community’ requirements relating to neighbourhood management, local area co-operation and ASB. However the new government has said that the TSA will be shelved.

22. Drink Banning Orders Introduced by the Violent Crime Reduction Act 2006 and commenced on 31st August 2009. A civil order against a person aged 16 or over who has engaged in criminal or disorderly conduct while under the influence of alcohol and the court considers a DBO necessary to protect persons and or their property from further conduct by that person of that kind while under the influence of alcohol. Police and local authorities can apply.

23. ‘Gangbos’ Not yet in force, these are new injunctions aimed at tackling gang related anti-social behaviour in respect of those over 18. These may include restrictions on meeting up, wearing gang colours or having a violent dog. The court must be satisfied both that the respondent has engaged, encouraged or assisted gang related violence (on the civil burden of proof) and the injunction is necessary to prevent the respondent from engaging in such behaviour or that it protects the respondent from gang related violence

24. Gang related violence is defined as violence or threats of violence occurring in the course of or related to the activities of at least three people who wear recognisable gang colours or emblems or adopt any characteristic that identifies them as a gang member and is associated with a particular area. The injunction can be both prohibitive and contain activity requirements (eg anger management courses, reporting etc). Interim injunctions are possible but have the onerous test of it being ‘necessary’ to make the interim injunction.