Legal basis of main social housing
powers
Sections 153A-E of the Housing Act 1996 (as inserted
by s13(1) of the Anti-social Behaviour Act 2003) set out three
main powers of injunction. In each case, the injunction prohibits
the conduct that constitutes the grounds for imposition. An injunction
is granted by a court on application of a local authority, RSL
or HAT. Prior to the 2003 Act, only local authorities could apply
for one of the injunctions then in force; local authorities and
RSLs could apply for the other.
Section 153A provides for an anti-social behaviour
injunction. This can be imposed if two conditions are met:
- The defendant has engaged, is engaged or is threatening
to engage in conduct that (a) is capable of causing nuisance or
annoyance to any person and (b) directly or indirectly
relates to or affects the housing management functions of the
landlord;
- The conduct is capable of causing nuisance or
annoyance to a person who is a member of at least one of four
specified groups.[477]
It is immaterial where the conduct occurs: the only
condition is that it must be connected (directly or indirectly)
to the landlord's housing management functions. If imposed, an
injunction prohibits the relevant conduct. Breach of the injunction
is treated as a contempt of court, with a potential sanction of
two years imprisonment, an unlimited fine or sequestration of
assets.
Section 153B provides for an injunction against
unlawful use of premises. It allows social landlords to apply
for an injunction where someone has used or threatened to use
social housing accommodation for an illegal purpose. This type
of injunction would typically be used to prohibit drug dealing
or the running of a brothel.
Section 153D provides for an injunction against
breach of tenancy agreement. This allows social landlords
to apply for an injunction on the grounds that a tenant is:
- Engaging or threatening to engage in conduct
that is capable of causing nuisance or annoyance to any person,
or
- Allowing, inciting or encouraging any other person
to engage or threaten to engage in such conduct.
The main advantage of this power (from the perspective
of the social landlord) is that it does not necessarily need to
relate to the housing management function. For example, if a tenancy
agreement contained a prohibition against threatening any member
of the landlord's staff, then this part of the injunction could
still be used, even if the member of staff threatened had nothing
to do with the landlord's housing management function.[478]
In addition, ss153C and 153D(2-4) permit the court
to exclude a person from a particular property or area, including
his or her place of residence, and/or to attach a power of arrest
to provisions of an injunctions which has been granted. These
additional powers are available only if the relevant conduct includes
the use or threatened use of violence or if there is a significant
risk of harm to any person.
All these provisions came into force on 30 June 2004,
although more limited forms of injunction have been available
since 1996.
In dealing with ASB by social tenants, an alternative
to directly prohibiting the behaviour through injunctions is to
threaten their security of tenure. The precise legal mechanism
to do this depends on the status of the tenant. Under Chapter
1 of Part 5 of the Housing Act 1996, all new tenants of
local housing authorities and housing action trusts (but not RSLs
who may be able to achieve a similar effect by the use of assured
shorthold tenancies) can be subject to an introductory tenancy
scheme. Introductory tenants are effectively on probation:
they do not have security of tenure and the landlord can evict
them more easily. At the end of the probationary period (usually
of one year, although the Housing Act 2004 allows for it to be
extended by a further six months where there are continuing concerns
about the tenant's behaviour), the tenancy automatically becomes
a secure tenancy, unless the process of obtaining possession has
been commenced.
If the perpetrators of ASB are secure tenants, social
landlords can attempt to stop the behaviour by applying for a
demotion order: essentially, this brings a secure or assured
tenancy to an end and replaces it with a new demoted tenancy which
does not enjoy the security of tenure during the demotion period
of 12 months. It can be imposed by a county court on application
from the social landlord if:
- The tenant or another resident
of, or visitor to, the tenant's home has behaved in a way which
is capable of causing nuisance or annoyance; and
- The court is satisfied that it is reasonable
to make the order.
The period of demotion is extended if the landlord
serves notice to seek possession of the property during this period,
until the resolution of the proceedings. The tenant's right to
buy is also suspended during this period.[479]
The demotion regimes for local authority tenants and RSLs are
different, although the effect is broadly comparable.
The ultimate sanction available to a social landlord
is to look to evict the tenant by applying for a possession
order. Where tenancy is secure or assured, such an order will
be granted only if the social landlord can prove in court that:
- grounds for possession have
been met; and that
- possession is "reasonable".
One of these grounds for possession relates to anti-social
behaviour.[480] However,
concerns were expressed that courts in different parts of the
country were acting inconsistently, and so the Government has
tried to facilitate consistent and predictable results by providing
a clear structure for the exercise of judicial discretion as to
whether eviction would be reasonable: in making this judgement,
the court must give particular consideration to the actual or
likely effect which the ASB has had or could have on others.[481]
These factors ought always to have been taken into account, but
the position is now put beyond doubt.
Even with this change in law, it remains far easier
for social landlords to evict introductory or demoted tenants
who persist in committing ASB. In such cases, the social landlord
would have to:
- Serve notice on the tenant
of its intention to start court proceedings
- Carry out a review of the decision (local authority
only)
- Apply for a possession order
As long as the landlord can show that the notice
was valid and correctly served, the judge must grant a
possession order—this is not discretionary. A failure to
carry out the review correctly does not give the court power to
refuse a possession order, but may lead to the possession proceedings
being stayed pending an application for judicial review, which
can of course cause delay.
477 
