New Anti-Social Behaviour Injunctions finally arrive

After a number of false starts, Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014, finally comes into force today.  This is the final part of the new Act to be introduced. The new Part 1 powers see an end to the ASBO regime and introduction of the new Anti-social Behaviour Injunction. This note summarises the new legislation and its potential benefits for social landlords.

Introduction

The Home Office Guidance on the Act, (Anti-social Behaviour, Crime and Policing Act 2014: Reform of anti-social behaviour powers – Statutory guidance for frontline professionals) published in July 2014, sets out a very clear aim for these new orders and states:

"To stop or prevent individuals engaging in anti-social behaviour quickly, nipping problems in the bud before they escalate"

To summarise, the new Civil Injunctions can be applied for by:

• Councils;
• Social Landlords;
• Police (including the British Transport Police);
• Transport for London;
• Environmental Agency and Natural Resources Wales; and
• NHS Protect and NHS Protect (Wales)
  

There are two tests for an injunction under Part 1 of the Act, namely (on the balance of probabilities):

1. Where the behaviour is non-housing related:  that the behaviour is likely to cause harassment, alarm or distress
2. Where the behaviour is housing related: the conduct is capable of causing nuisance or annoyance

And that in both cases: it is just and convenient to grant the injunction to prevent anti-social behaviour.

As the old ASBO regime will now be revoked, Civil Injunction can now also be sought, through the Youth Courts, against youths over 10 but under the age of 18.

Breaches of the new injunctions will be a civil contempt of court and punishable, if the breach is proven beyond reasonable doubt, by an unlimited fine or up to two years' imprisonment.

Some practical points to consider concerning the use of the new injunction powers are set out below.

Possession

Ground 84A Housing Act 1985 (secure tenancies)  and Ground 7A Schedule 2 Housing Act 1988 (assured) were introduced on commencement of Part 5 of the Act on 20th October 2014. The new grounds open up an absolute and mandatory ground for possession if the court is satisfied that a tenant, or a person residing in or visiting the property, has breached a provision of an injunction and,

• the breach occurred in, or in the locality of, property, or
• the breach occurred elsewhere and the provision breached was a provision intended to prevent - 
• • conduct that is capable of causing nuisance or annoyance to a person residing in or occupying housing accommodation in the locality of the property or;
  • conduct that is capable of causing nuisance or annoyance to the landlord or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and that is directly or indirectly related to or affects those functions.

These new grounds for possession make the amendments to the Civil Injunction all the more welcome for landlords as a tool for controlling nuisance and criminal behaviour. Whilst the injunction will be seen as a tool to end the behaviour, they will, if breached, potentially act as a stepping stone to the ultimate sanction of loss of tenancy. Injunction applications should therefore be considered carefully and breaches acted on quickly if the landlord intends to seek possession.

Landlords should consider now how these new grounds will affect their current tenancies and ASB policies and procedures so that the new grounds can be utilised quickly if necessary.

Positive Requirements

One key change to the new injunctions is the ability for landlords to be able to obtain injunction requiring the defendant to take positive steps (rather than just to refrain the defendant from repeating the behaviour complained of). These requirements are to be used to "get the individual to deal with the underlying cause of their behaviour" and can be tailored to the individual circumstances of the defendant. Suggested positive requirements have included:

1. Mandatory attendance at Drug and Alcohol counselling;
2. Attending Dog training and classes and nuisance pets; and
3. Clearing properties and gardens that have been left in a state of disrepair.

However, there is a sting in the tail for landlords. The claimant will be responsible for making sure that provisions are in place to allow the defendant to meet these requirements, eg. payment for counselling sessions may need to be covered. Additionally, the claimant will be asked to police compliance with such requirements. This may mean that landlords prefer to seek positive requirements that do not require them to provide any additional resource as there will be an associated cost to such resources or indeed, these may be beyond the landlord's capacity to provide eg. specialist mental health support.

Youths

New Court rules have now been published and also come in to force today in reference to injunction applications made in the Youth Court. The rules set out the procedural steps and requirements necessary when an injunction is sought against a minor. They also grant the Youth Court the discretion, on an application by the claimant, to hear applications against those over the age of 18 where another defendant in the same matter is under 18 and must be heard in the Youth Court.

Where an injunction is made against a minor who then attains the age of 18, the matter will continue to be heard by the Youth Court (on breach of the order for example) unless the Youth Court directs otherwise.

Legal Aid

The introduction of Part 1 of the Act was delayed due to issues with Legal Aid for the defence of injunction applications by under 18s. Changes to Legal Aid were the subject of consultation which has resulted in major changes to the funding regime. These amendments are now in place and will in all likelihood see committal matters being passed to solicitors with criminal Legal Aid contracts from now on. This means that whilst a civil housing lawyer may deal with an injunction application, we may find that on breach, the matter will be passed to a criminal solicitor, who may have little understanding of housing law. Only time will tell what impact that will have on these cases

Summary

Part 1 is the final missing piece of the jigsaw in relation to full implementation of the Anti-Social Behaviour, Crime and Policing Act 2014, and has been long awaited by local authorities and housing associations alike. The new Civil Injunctions are an important step forward in tackling anti-social and nuisance behaviour and will see major changes to the previous regime, not least in the removal of the infamous ASBO.

The ability to rely on breach of injunction as an absolute ground for possession cannot be underestimated. Whilst the Home Office envisage the use of informal approaches before court action is taken, the new legislation recognises that where professionals decide that formal action is needed, they should be free to take that action quickly. Breaches of injunctions will not need to be tolerated and serious sanctions will now be available where a breach occurs. Not only does this give flexibility to landlords in terms of creating another route to possession, but the prospect of eviction should increase the likelihood of injunctions being shown more respect by defendants and, ultimately, adhered to.

The introduction of the new injunctions will also likely see more tactical use of injunctive powers by landlords, and not only because of the new link between the Civil Injunction and the right to possession. The new injunctions will allow landlords to work closely with tenants by imposing positive requirements as injunction terms, which will enable landlords to take effective action to address entrenched problematic behaviour. Such requirements also open the door to closer working relationships with other support agencies such as mental health bodies and Social Services.

Used correctly, the new injunctions will allow landlords to nip anti-social behaviour in the bud quickly but where that is not the case and the situation is little improved, they will allow landlords to take long term preventative action, supporting victims and effectively managing their housing stock. The new Act represents positive change for housing providers who should welcome the new Civil Injunctions as an effective tool in their armoury for managing ASB.