The Community Trigger - Antidote or Aggravation?
Following the publication of Home Office consultation paper “More Effective Responses to Anti-social Behaviour” in February 2011, the proposals were very much left on the sideline whilst the Government focused on the Localism Act 2011 and on the Welfare Reform Bill. It is widely rumoured that the Government will progress the Consultation in the New Year with the introduction of a draft bill in 2012.
The Consultation proposed, amongst other things, the introduction of a new community trigger to require local agencies to take action where there has been persistent anti-social behaviour (‘ASB’) where agencies appear to have failed to respond. The proposal has raised concern amongst local agencies that such trigger would be unworkable and, in the case of landlords, would create a positive duty to act to tackle ASB.
So how would the community trigger work?
The proposal suggests that the criteria for the trigger would be that:
- 5 individuals from 5 separate households in the same neighbourhood have complained about the issue and no action has been taken; or
- the ASB in question has been reported to local agencies (Police, Local Authority and/or Housing Association) by an individual a minimum of 3 times and no action had been taken.
The proposal contains an exception to the requirement for agencies to act where the Community Safety Partnership deems the complaint to be malicious on the basis that complaints are targeted to particular individual or family on discriminatory grounds. If restricted to only protected characteristics in the Equality Act 2010, as has been indicated, then this exception appears to be very limited.
On one of the two criteria being met, the Community Safety Partnership would be required to write to the complainants within a set period, currently thought to be 14 days, setting out the how it is intended to deal with the ASB in question (including the use of any ASB tools). It is also envisaged that the response letter would enable the Community Safety Partnership to set out any assistance that they required from the complainants or the wider community in terms of gathering evidence and providing evidence at Court.
It is proposed that the response be copied to the Police and Crime Commissioner so that the Community Safety Partnership could be held to account if their response was inadequate. It is intended that it would be for the Community Safety Partnership to decide how they wanted to publicise the community trigger.
Can agencies currently be required to deal with ASB?
The current legal position is that it is difficult for a frustrated complainant to sue the local authority or housing association for not doing enough about ASB. In Mowam v Wandsworth LBC [2001] and Hussain v Lancaster [2000] the Court of Appeal held that a landlord cannot be liable for nuisance caused by its tenants unless that nuisance has been actively encouraged by the landlord or the landlord participated in the nuisance. The fact that the landlord had known of the nuisance but nothing about it was not enough.
Further in the case of Mitchell v Glasgow City Council (2008) the House of Lords held that Glasgow City Council did not have a duty of care towards a tenant who has complained of ASB. This unfortunate case came about after the perpetrator of ASB killed a complainant upon the council commencing action to evict the perpetrator based on complaints made by the complainant.
The case of Brumby v Octavia Hill Housing Trust [2010] left the pathway open for complainants to claim that a duty on the part of the landlord did exist where nuisance had occurred in communal areas of the property. In this case while no decision was made on this issue, the Court refused to strike the claim out based on Mowam v Wandsworth LBC on the basis that the facts could be differentiated in that the nuisance was occurring on land owned by and in the possession of the landlord.
Alternative Complaint Mechanisms
The Local Authority Ombudsman and the Housing Ombudsman Service currently provides an alternative complaint mechanism. As an example an Ombudsman complaint against Cardiff City Council in August 2009 resulted in the Council paying £7,500 to a victim of ASB due to their failure to act. The Council were also required to transfer the victim to suitable alternative accommodation, review their ASB procedures and train staff on how to handle anti-social behaviour.
The consultation paper “More Effective Responses to Anti-Social Behaviour” can be found at the following link .
