FASTRACK ASB EVICTIONS - SPIN OR SOLUTION?
Last week, Housing Minister Grant Schapps announced Government plans to speed up antisocial behaviour evictions. The proposals, that in cases where tenants had been convicted of "housing related" crime there should be no need to prove the crime in the criminal courts and the County Court and that where housing related crime had been committed a mandatory ground for possession would apply, will have represented a popular headline for those suffering from antisocial behaviour, but is there any substance behind the proposals?
Ground 14 of Schedule 2 of the Housing Act 1988 (Assured Tenants) and Ground 2 Schedule 2 of the Housing Act 1985 (Secure Tenants) are both discretionary grounds for possession, they can be used when a tenant (or his household or visitors) have been convicted of an indictable offence in the locality of the dwelling house. Convictions for less serious offences which are not indictable may also be utilised as evidence under these grounds if there is an element of "nuisance and annoyance" related to the conviction.
In reality, where a tenant (or his household or visitors) has been convicted of a criminal offence in the locality of their property, there is no need to prove that a crime has been committed in both courts as the Housing Minister's announcement suggests. A certificate of conviction obtained from a Crown or Magistrates Court will be unassailable evidence in a County Court as the criminal proceedings will have been tried on a higher burden of proof. There will be no need to call witnesses in relation to the allegations for a second time.
The Government's plans to introduce a mandatory ground for possession in for this type of case may also run into problems given the Supreme Court's recent decision in Manchester City Council v Pinnock [2010]. In this case, the court found that possession proceedings in which the court could not consider "proportionality” when deciding whether to grant possession, were unlikely to be human rights compliant. Whilst the termination of introductory and starter and demoted tenancies clearly fall foul of the ruling in a Pinnock, so do proceedings on mandatory grounds for possession, as the court has no discretion in making an outright possession order and does not consider whether it is reasonable or proportionate to do so.
In reality, a mandatory antisocial possession ground in the post-Pinnock world will probably lead to defendants delaying any fast track possession proceedings based upon by insisting that the County Court consider the proportionality of the decision to evict.
Whilst it may still be the case that the Government will try to put some flesh on the bones of the proposals put forward by Mr Schapps last week, there must be a fertile ground for arguments in relation to “proportionality” especially if the intention is to make any "housing related crime” the gateway to mandatory possession proceedings. Can it be proportionate for a mandatory ground for possession to apply to a conviction relating to the breach of a noise abatement notice in exactly the same way that it would apply to individual responsible for a serious housing related assault on a neighbour?
Finally, the devil must be in the detail. It is to be hoped that if there is to be an amendment to legislation to allow for some sort of streamlined procedure for cases in which a housing related crime has been carried out, that there will be adequate definition of what "housing related crime" is. Unfortunately the draughtsmen get it wrong, there may be further interesting arguments raised by defendants who will argue that although a crime has been committed it is not housing related. It can only be hoped that any amendments to legislation retain the reference to "locality” which is at least a tried and tested phrase in relation to housing related antisocial behaviour.
