Examination of Witnesses (Questions 500-519)
22 FEBRUARY 2005
MR TIM
WINTER, MR
JON ROUSE
AND MR
DAVID SALUSBURY
Q500 Mr Green: But having had that?
Mr Winter: I have not got the
figure specifically, sorry.
Q501 Chairman: You told us about acceptable
behaviour contracts and other means. If we look at this just for
a moment from the victim's point of view, what are the key elements
in communicating effectively with the victim about what is being
done and how good a social landlord is at this? I suspect many
of us sense that if you are the victim actually what happens is
you put up with it for six months, then you complain, then you
are asked to keep a log sheet for six months, which you then hand
in, and then six months later you have not heard from anybody
about whether anything is going to happen, at which point you
go and ask if you could be moved please. I am sure you would not
deny that that is not a total caricature of how it often is if
you are on the receiving end of anti-social behaviour from a neighbour.
What are you doing to make sure a) that action is taken quickly
enough from the victim's timetable and b) that people know that
something is being done?
Mr Winter: First of all, I would
rather they were called witnesses. "Victims" is a bit
pejorative and implies a certain culture which I do not accept.
They are persons who are unlucky enough to live next to or close
to somebody who is making a profound impact on their lives.
Chairman: Are they not victims?
Q502 Bob Russell: They are victims.
Mr Winter: I think they are witnesses
and I think they are potential witnesses to go to court at some
stage. I think that at each and every stage of receiving their
complaint that the persons who are receiving that complaint should
understand that so that at the very first point of contact they
are given confidence that a) they are going to be believed and
b) that appropriate action can and will be taken. Much bad practice
has been around, just as you have described. I think Martin Lee
in his evidence from Manchester described finding reams of diary
sheets where nothing had been done. I have spent the last five
years of my going around to social landlords saying that the first
thing you should do is call them incident logs and that you should
attach an action plan to that at the very first stage. It is not,
"Here is a diary sheet, go away, record how unhappy you are
every night," but to record the incidents of anti-social
behaviour in order that action can be taken on them, if necessary.
You are absolutely right, what is the message to the witness or
potential witness of giving a diary sheet? It is, "We do
not believe what you are saying now." That is the first impression
and that impression may then well say, "They will not be
able to do anything for me," so they end up at your surgeries
complaining. It is that commitment to understand what and how
to do which has been a very large training effort in the social
landlords who have been most effective in this way, in understanding
that and that commitment. It has been moving from a culture of,
"Perhaps we can send a warning letter or perhaps we will
consult with other agencies," to thinking, "What are
these circumstances and what can we do to deal with them now?"
Mr Rouse: There is a really important
point here about including the wider community from the outset.
One of the things we require in terms of anti-social behaviour
strategies is that a community is directly involved in drawing
up those strategies in terms of the criteria for intervention
and how tools are used and when they are used. The importance
of that is when an incident does occur or a succession of incidents
occurs the community can be directly involved in gauging how that
incident relates to the strategy that was set out and will almost
always be more supportive in terms of the attitude towards the
victim and the determination to take action including witnesses
coming forward. At the heart of the whole anti-social behaviour
strategy—I am sure the Home Office would agree with this—is
community involvement and that is very important for any victim
to have that wider support.
Q503 Chairman: Mr Salusbury, if one of
your members got a phone call from somebody saying, "I am
living next door to a property that you let; I am suffering from
very serious anti-social behaviour," what is the appropriate
response of the private landlord?
Mr Salusbury: I think that landlord
should immediately contact the local housing department and report
the fact and say, "I need some support."
Q504 Chairman: But the housing department
has no responsibility for that property. It is a privately owned,
privately let property.
Mr Salusbury: But it is not the
property that is causing the problem; it is the occupants. The
local housing department will know perhaps people who might and
it then must become, as has been said, a society approach as part
of the strategy, in this case the representative of society being
local government officers and the police. The local landlord himself
could not by himself deal with that particular situation. I would
also like to make another general point about the incidence of
anti-social behaviour, if I may, in the private rented sector
and that is the type of people who cause that behaviour are very
often exactly those who have themselves been rejected by the other
two housing sectors, so even though it is a last resort in the
social sector and perhaps in some instances in the public sector
to evict people behaving anti-socially, the question then arises
where do they go? The answer very often is to the private sector
because there is nowhere else. The private landlord may then in
certain circumstances institute possession proceedings. Let us
say he is successful (and it could take six months to gain possession
using the appropriate sections of the Housing Act, Section 21,
et cetera) where do those people then go? They are probably homeless
and they could reappear just three doors down the street having
been housed by the local authority, so it is `pass the parcel'
or in some parts of the country it is known as `pass the bomb'.
So the private landlord can find himself with no option other
than to accept a tenant for whom he cannot get references because
they are simply not available or to leave the property empty in
which case it will be boarded up and liable to be vandalised.
Q505 Mr Taylor: Mr Salusbury, I was slightly
puzzled by your opening comments. My experience as a Member of
Parliament is that if I got notification by a constituent of anti-social
behaviour from their neighbour, if it was a council house I would
certainly go to the local housing department but if it was not
a council house and it was a private tenancy then my first call
would be to the anti-social behaviour officer in my area. Are
we misunderstanding each other or are we understanding each other?
Mr Salusbury: I would like to
think we are perhaps misunderstanding each other here, Mr Taylor.
The private landlord on receipt of the information that the Chairman
mentioned is at liberty to go along to the tenant and say, "Cool
it, would you mind, we do expect you to be aware of the needs
of others. Would you mind turning your music down? Would you mind
not bringing people back at 4 am in the morning and causing mayhem?"
He is at liberty to do that and we would hope that he might but
what happens if the private landlord is insufficiently physically
prepossessing to feel confident to do that? There is an element
of risk about it with the type of people with whom you might be
dealing and therefore he would have to make a judgment and the
likelihood is that he would require the support of some statutory
agency in order to deal with this problem, of course depending
upon the severity of it. If it were just an occasion where the
music had been played loud, which is pretty low down on the scale,
then he might well go to the tenant and say, "Look, you are
in breach of your obligation to live in a reasonable manner and
therefore would you kindly not play your music loudly." If
it is mayhem being caused by people who are high on drugs or high
on alcohol there is very little he can do other than call exactly
the agency you mention.
Q506 Mr Taylor: We did find ourselves
agreeing in the end?
Mr Salusbury: We did indeed.
Q507 David Winnick: In your evidence
which you gave us, Mr Salusbury, you say that you are concerned
that "private landlords are commonly demonised as irresponsible
individuals who are happy to install any tenants, regardless of
their behaviour, often in low-quality housing, simply in order
to rake in money from rent." Recognising that hopefully most
private landlords are not in that category, you would have to
accept, would you not, that there are a number in your association
or otherwise who are precisely in that category?
Mr Salusbury: As a general proposition
I think one has to accept that there are rogues in all walks of
life, yes.
Q508 David Winnick: And where there are
such amongst your members who are known to be like that, do you
take any action?
Mr Salusbury: The trick is to
say who are known to be like that. No, the National Landlords
Association is not really a sufficiently mature organisation as
yet to be able to undertake a policing role of that nature. It
is almost a policing role but you then enter into considerations
of exclusion, which I am sure you are aware is an absolute minefield
in terms of human rights legislation and the rest of it. We would
enjoin our members to abide by a code of behaviour and we would
reserve the right as a last resort not to renew membership.
Q509 David Winnick: Have you ever done
that, as a matter of interest?
Mr Salusbury: No, we have not.
It is something we are a little bit nervous about, to be honest.
Q510 Janet Anderson: Mr Salusbury, I
think you said earlier, when you were referring to the problem
of tenants who have been evicted from social housing, and correct
me if I am wrong, that private landlords in that situation have
no option other than to take those tenants in. Are you saying
to me that some private landlords take in tenants who they know
have previously been guilty of anti-social behaviour? If that
is the case, why do they take them in?
Mr Salusbury: I am not sure if
I said they have no option.
Q511 Janet Anderson: I may have misheard
you.
Mr Salusbury: I think they have
little option in an area of low demand between taking the available
tenant with the attendant risk and leaving the property empty,
in which case it will be boarded up and potentially vandalized.
In those circumstances the landlord could turn to the local authority
and ask for a reference and in some instances the local authority
will provide information to the private landlord that might deter
him from taking those particular individuals, but in so doing
the local authority may be acting against its own interests because
where do those people then go if they are not taken by that private
landlord? I do not know. The answer is they are probably homeless.
There is a statutory obligation on the local authority to house
them. So they have moved around the cycle again. It comes back
again to the requirement for these people to have support rather
than punishment.
Q512 Janet Anderson: There would be another
option open to the landlord. They could sell the house and cease
to be a landlord, but presumably they would not do that because
they would want to carry on getting an income and making money
out of the property and the only way they can do that is by taking
in the kind of tenants we are discussing here.
Mr Salusbury: I think a number
of those who can do sell up, but there is not exactly a thriving
market for that sort of property.
Q513 Mr Taylor: Several housing organisations
have argued that all the necessary enforcement powers are now
in place, the key being to remove the barriers to their operating
effectively. Is that a correct analysis of what needs to be done?
Mr Rouse: I think it is true,
although only time will tell. As I said earlier, we have only
had eight to ten months of having the full suite of powers available.
We talked previously about the relationship between acceptable
behaviour contracts and ASBOs and also the use of injunctions.
We have also got this very good relationship between demoted tenancies
and the last-stop option of eviction. We feel that for the time
being we need to test this suite of powers and see if it is right.
There are some barriers to their effective use, some of which
we have already touched on, ie the inconsistency of particularly
magistrates in terms of how they treat these breaches in court.
The other significant barrier and one where I think there is a
lot more work to be done is the costs of securing an ASBO. We
have a variety of numbers. We have a figure which was given to
us by Croydon Churches Housing Association that in one case, which
eventually led to eviction, they managed to get to a bill of £50,000.
Clearly that is an extraordinary amount of money to deal with
just one tenant. Housing associations do not have access to those
levels of resources for prosecuting these types of cases. Some
very inspiring housing associations are now effectively training
themselves in how to secure ASBOs and bypassing solicitors and
in some cases barristers as well in order to reduce those costs,
but I do think there is a responsibility on the Home Office and
on the Department of Constitutional Affairs to look at the costs
involved in securing an ASBO or an injunction or indeed an eviction
to find a more streamlined way of achieving the same objective.
It is for that reason that we very much welcome the Home Office's
setting up of specialist prosecutors and also looking at the potential
for special courts.
Q514 Mr Taylor: Mr Rouse, that was a
very comprehensive answer indeed. I declare an interest as I spent
22 years as a practising solicitor before magistrates. I actually
became a very, very firm fan of magistrates. I think it is not
for nothing that this system has survived for 600 years. There
may be some inconsistencies, but this is a new branch of the law.
They have guidance available, they have the Justices' Clerks Society,
they have the Department for Constitutional Affairs and the Home
Secretary and they have their own organisation in which they can
talk to one another and compare best practice. Do you not think
that inconsistency from magistrates is likely to be a very temporary
experience and they will soon settle down to best practice?
Mr Rouse: I think in general terms
I agree with you and I share your views of magistrates. Training
is going to be very important. With any new area of the law, if
you are responsible for enforcing it then training and guidance
is absolutely paramount.
Q515 Mr Taylor: The training of magistrates
is a modern phenomenon, is it not, Mr Rouse?
Mr Rouse: And a welcome one.
Q516 Mr Taylor: How valid are the human
rights concerns especially in relation to ASBOs? Do these concerns—for
instance, relating to the possibility of somebody being sent to
prison for something relatively trivial and the practice and culture
of "naming and shaming"—sit comfortably with the
effectiveness of ASBOs or are they areas of potential difficulty?
Mr Winter: First of all, could
I contribute to your first question?
Q517 Mr Taylor: Yes.
Mr Winter: I asked a very similar
question of my members regarding whether we have enough tools
or whether we need new remedies. I had an answer from the London
Borough of Camden who has done some great work on the use of ASBOs
and it has had good publicity. They said, "The legislation
is great. There are no excuses now. We cannot see the need for
new remedies." That is a serious player who is saying that.
I share John's concern about costs. Let us go back to think about
the ASBO. It was called a Community Safety Order in the early
days. If the rent payers for an association are paying for community
safety then we have to ask some questions because community safety
is something that comes through the police and local authorities
and generally is funded by taxpayers. On human rights, all the
decisions of the courts have been indicative that we have got
the balance right and nowhere is specified the fact that there
is a community right, but most of the decisions made at court
have understood the concept that the right of an individual is
there, but that individual has not the right to impose his set
of standards on a community at large and the courts have held
such to date.
Q518 Mr Taylor: I think in the idiom
of a landlord and tenant it is conventionally called quiet enjoyment,
is it not?
Mr Winter: Indeed so.
Q519 Mr Taylor: I wonder if I could ask
you gentlemen whether any of you have experienced any problems
of inappropriate conditions being attached to ASBOs?
Mr Winter: I have never been subject
to an ASBO! I have heard the accusation that indeed there have
been inappropriate conditions. I think that we have learned over
time and are still learning that what is a relatively new tool
should be used carefully and appropriately. I think there is a
considerable debate going on amongst the lawyers who want to put
legalese in the terms of a contract and practitioners who would
like to use the language of the street that the perpetrator understands
in the Order. We are learning how that is going. We are getting
better. I think that the multi-agency approach will influence
that. The instance that was discussed earlier of forbidding contact
with support agencies by exclusion from areas was a good example
where it has been wrong.
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