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Antisocial behaviour: What are the alternatives to possession action?

The complex issue of antisocial behaviour (ASB) in a housing context has been discussed several times in Housing Rights’ articles and through case reports. Providing advice and assistance to those affected by ASB is an important area of our work.

Housing Adviser Sarah Corrigan reviews a recent case in which possession action was taken on the grounds of ASB and highlights important considerations in ASB cases. This article also considers the most recent piece of housing legislation to come into force in Northern Ireland – the Housing (Amendment) Act 2016 (which came into force on 9th July 2016) – and how this Act dramatically changes the way in which social landlords, tenants, third parties (e.g. local district councils), solicitors, advisers and individuals can deal with ASB possession cases.

Tenant receives notice seeking possession

In April 2015, the client contacted Housing Rights for advice and assistance when he had received a Notice Seeking Possession (NSP) from his Social Landlord. The NSP cited Ground 2 of Schedule 3 of the Housing (NI) Order 1983 (ASB) as the reason for taking the action. The NSP referred to several incidents, which were being relied upon to establish the ground for possession. These were exclusively noise-related.

The power to seek to evict a tenant who has been guilty of ASB is entrenched in Article 27 of the Housing (NI) Order 1983 and Article 9 of the 2003 Order for introductory tenancies. The client was a secure tenant and the ground that was being relied upon was one of strict liability; meaning that there did not need to be intent to cause the ASB to bring an action, it is sufficient that it had taken place.

However, it should always be remembered that social landlords are regarded as public authorities when they are exercising a public function, such as providing housing to homeless households. Section 6 of the Human Rights Act 1998 requires that the actions of public authorities must be compatible with the European Convention on Human Rights. As such, social landlords must ensure that the right to respect for family and private life and the home, set out in Article 8 of the European Convention on Human Rights, is protected. That means that any dispossession of the home must be a last resort. Case law further compounds this approach and has provided a wealth of jurisprudence on this topic; highlighting the obligations of social housing providers.  

Further, the Department for Communities has issued guidance to provide direction to social landlords on how to deal with ASB i.e. save in cases of very serious incidents, alternative remedies must be exhausted before legal action is commenced. These alternative remedies include mediation and acceptable behaviour contracts (ABCs).

As the case progressed, it became apparent that the social landlord’s procedures were flawed in a number of ways. 

Only two of the noise-related incidents had been confirmed by a third party, such as the local council’s noise team or the PSNI. The client was not informed about each incident or given the right to respond to these allegations. In addition, all of the reports were made by one individual within the housing complex and the social landlord did not offer any other alternative remedies, such as mediation, ABC or the installation of noise monitoring equipment, as a means of resolving the dispute.

Furthermore, the client had numerous vulnerabilities and engaged with both a support worker and a social worker.  During the course of the case Housing Rights, with the support of involved medical practitioners, proposed that an internal transfer to another scheme may resolve what appeared to be a neighbour dispute and could be considered an acceptable alternative to possession proceedings. This was prohibited by the social landlord and the case proceeded to court. The matter was settled on the day of the hearing and a Suspended Possession Order for 3 months was granted in light of the fact that there had not been any reports of ASB in over 6 months. When the period of 3 months is finished, the Possession Order will lapse.

It is Housing Rights contention that this case was unnecessarily protracted and could have been resolved at a much earlier stage by considering alternative routes to possession or stronger adherence to procedure prior to taking legal action. While tackling ASB cases is a complex issue, taking these steps undoubtedly could have saved both time and money.

The Housing (Amendment) Act (NI) 2016: What does it mean for ASB related possession proceedings?

The Housing (Amendment) Act 2016 (2016 Act) gained Royal Assent on 9 July 2016. This concise, potentially very effective and enabling piece of legislation facilitates the sharing of information in relation to ASB and empty homes, and enables the Northern Ireland Housing Executive (NIHE) to register a statutory charge in respect of grants by way of loan.

Arguably, the most crucial provision of this recent Act is contained within Clause 2; information sharing in order to tackle ASB. For the first time, this clause affords NIHE and Registered Housing Associations (RHAs) the right to seek information in order to take possession action against those involved in ASB. 

ASB in a housing context is an extremely complex and dynamic problem. As aforementioned, Social landlords in NI have a statutory obligation to respect, protect and promote Article 8 of the European Convention on Human Rights: “Everyone has the right to respect for his private and family life, his home and his correspondence”, this right applies to both the alleged perpetrator(s) and the other   tenants/community, and therefore this can be an extremely delicate balance to perfect for the Social Landlord.

Evidence has shown that rapid intervention, careful analysis of the ASB and proportionate action, coupled with a range of complementary forms of action such as support from other bodies can lead to the successful resolution of a situation involving ASB and greater compliance with Article 8.

Statutory guidance, both in NI and in the rest of the UK, encourages a multiagency approach as the most effective way of tackling ASB. Unfortunately, NI’s legislative framework prior to the introduction of the 2016 Act, did not allow for the mechanisms to be in place to implement such an approach fully. This barrier to the effective management of ASB was raised by several stakeholders during the consultation phase of this new Act. Notably, it was reported that a number of consultees highlighted the need for improved information sharing in order to tackle ASB. While NIHE did enjoy information sharing in limited circumstances, RHAs' ability to share information was extremely restricted. RHAs currently preside over a growing share of the social rented sector, therefore any change in the law needed to ensure RHAs would be given the same powers in respect of information sharing, allowing them to adequately manage tenancies and promote sustainable communities.

The previous legislative position regarding information sharing in respect of ASB was found in Section 13 of Housing (Amendment) Act (NI) 2011.

Section 13 allowed any person to disclose “relevant information” to a landlord under a secure tenancy if the information is disclosed for the purposes of enabling the landlord to decide whether or not to withhold consent to a mutual exchange or allow a tenant to exercise their right to buy their home. In addition, Section 13 allowed any person to disclose “relevant information” to NIHE if the information is disclosed for the purpose of enabling NIHE to decide whether or not to treat someone as ineligible for assistance for allocation of social housing and/or for homeless assistance. By virtue of Section 13, “relevant information” could also be disclosed to RHAs for the purpose of enabling the RHA to decide whether or not to allocate housing accommodation to any person. Section 13(4)(b) defines “relevant information” as information relating to any order or application mentioned in Ground 2A or 2B in Schedule 3A to the Housing (NI) Order 1983, e.g. an injunction against breach of tenancy agreement.

While the previous legislative position did help Social Landlords manage their stock i.e. appropriate sanctions such as applying limitations on tenant’s rights such as the right to exchange, and made Social Landlords aware of potential difficulties and helped them identify trends of ASB in certain areas, Section 13 had a number of limitations.  Section 13 allowed social landlords to deal with the consequences of ASB, but did not provide all Social Landlords with the tools to try to prevent ASB at an early stage. In addition, the lack of information sharing during the investigation stage of ASB would often act as an incentive for taking rapid legal action rather than considering alternative measures. While NIHE were able to set up some information sharing protocols to circumvent this barrier, RHAs continued to face obstacles to effectively dealing with ASB.

The introduction of the 2016 Act aims to remove these barriers; the objective of this Act is to improve the ability of relevant agencies to properly investigate ASB.  Therefore, Section 2 provides that a “person” may disclose certain information about ASB to NIHE or a RHA where such information is required for certain housing management purposes. “Purposes” has been widened and now includes applying for injunctions on grounds of ASB, applying for possession orders on such grounds, withholding consent to the mutual exchange of secure tenancies and determining that a person is not eligible for accommodation on the basis of their unacceptable behaviour. The 2016 Act repeals Section 13 of the 2011 Act.

It is anticipated that this new Act will aid social landlords in their duty to manage ASB.

During the legislative process, potential data protection and human rights concerns were raised, and the Bill was considered in light of these. While careful consideration has been given to the 2016 Act, like any new law it is possible that an issue may arise during the application of this act. Importantly, guidance is currently being issued for this Act, to outline appropriate application. It is important to note that this legislation and the information sharing procedures do not apply to the private rented sector.

Further reading and resources

Housing Rights publishes a comprehensive Professional Resource on Antisocial Behaviour and Housing, which is available from our online shop.  Housing Rights will be providing training on the assistance that councils can provide in dealing with housing problems in October 2016. This course will include information on resolving problems with antisocial behaviour. 

Tagged In

Repossession, Social Tenancies

This article was written on 26 September 2016. It should not be relied on as a statement of the current law or policy position. For help with housing issues please contact our helpline on 028 9024 5640 or use our online chat service at www.housingadviceNI.org.