www.emlawshare.co.uk Anti-Social Behaviour, Crime & Policing Act 2014 Home Office White Paper (May 2012) "Putting victims first: more effective responses to anti-social behaviour: "We will introduce faster and more effective powers to stop the dangerous and yobbish behaviour of those who make victims' lives a misery" Theresa May MP
www.emlawshare.co.uk Royal Assent on 13 March 2014 Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No.1) Order 2014/630 Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No.2 Transitional and Transitory Provisions ) Order 2014/949 Anti-social Behaviour, Crime and Policing Act 2014 (Publication of Public Spaces Protection Orders) Regulations 2014 Statutory Guidance July 2014 Anti-Social Behaviour, Crime & Policing Act 2014
www.emlawshare.co.uk Part 1 Civil Injunction to tackle housing/non housing ASB Part 2 Order on Conviction to prevent behaviour which causes harassment, alarm or distress Part 3Dispersal Power for behaviour causing harassment, alarm or distress Part 4Community Protection Notices, Public Spaces Protection Orders and Premises Closure Notices Part 5Possession of houses on ASB grounds Part 6Community Remedy document & dealing with responses to complaints of ASB Anti-Social Behaviour, Crime & Policing Act 2014
www.emlawshare.co.uk Injunctions to Prevent Nuisance and Annoyance Part One (ss 1-22) Two conditions 1) Def. has engaged or threatened to engage in ASB 2) The court considers it just and convenient to grant the injunction for the purpose of preventing the Def. engaging in ASB see s1
www.emlawshare.co.uk Injunctions (1) Who can apply for them? Local Authorities, Housing Providers, Chief Officers of Police, the Environment Agency and others see s5 Against whom? Any person over 10 y.o. see s1(1) If Def. < 18 y.o. maximum 12 months see s1(6)
www.emlawshare.co.uk Injunctions (2) Venue Def. < 18 y.o. Youth Court, High Ct or County Ct otherwise Consultation N/A for W/O notice applications (Int Inj only remedy) see s14(1) Where W/O notice Injunctions made, must consult/inform before 1 st on-notice return datesee s14(2) Must consult/inform before apply to vary/discharge Consult YOT if Def. < 18 y.o. see s14(3) Inform anyone else applicant app. thinks approp Procedure New section after CPR 65.9 – part IX
www.emlawshare.co.uk Injunctions – Breach (1) No warrant required if breach of provision with a PoA see s9 Brought before County/High Court within 24 hours of arrest see s9(3) County Court if Injunction made by Youth Court but Def. now >18 y.o. Youth Court if Def. < 18 y.o. See Schedule 2 for powers of the Court for <18 y.o. (Supervision Order, Detention Order)
www.emlawshare.co.uk Injunctions – Breach (2) Standard of Proof – Criminal Adults – up to 2 years Imprisonment &/or Unlimited fine Youths – Supervision, Curfew or Activity Detention (max 3 months for 14-17 yr. o)
www.emlawshare.co.uk Injunctions - What is ASB? a)Conduct that has caused, or is likely to cause, harassment, alarm or distress to any person b)Conduct capable of causing nuisance or annoyance to a person in relation to that person occupation of residential premises c)Conduct capable of causing housing-related nuisance to any person see s 2(1) NB. Conduct over past 6 months relevant see s21(7) See ‘Reform of anti-social behaviour powers draft guidance for frontline professionals’ Oct. 2013
www.emlawshare.co.uk Injunctions - Housing-Related Conduct ‘housing-related’ means directly or indirectly relating to the housing management functions of: a)Housing provider, or b)A local authoritysee s2(3) ‘Housing Management functions’: a)Functions conferred by any enactment b)Powers of duties of housing provider or LA as the holder of an estate or interest in housing accommodationsee s2(4)
www.emlawshare.co.uk Injunctions - Contents Can have prohibitions and positive requirements Must not interfere with the times when the Def. normally works or attends school/educational establishment Must avoid any conflict with any other court order to which Def. is subject see s1(4)
www.emlawshare.co.uk Injunctions - Positive Requirements (1) Before they are made: The court must receive evidence from Supervisor about the suitability of the enforcement of the requirement Court must be satisfied before including 2 or more requirements, they are compatiblesee s3(2)
www.emlawshare.co.uk Injunctions - Positive Requirements (2) Must specify who will supervise the positive requirement There is a duty of Supervisor to make: –Necessary arrangements in connection with the requirements –Promote compliance –Inform the applicant of compliance/non-compliance Def. under duty to remain in contact with supervisor and notify of change in address see s3
www.emlawshare.co.uk Injunctions - Power of Arrest and exclusion from home Court may grant PoA to prohibition or requirement if it believes: –The ASB Def. has engaged/threatened to engage includes the use/threatened use of violence, or –A significant risk of harm to other persons from Def. ‘Requirement’ does not = one requiring Def. to participate in specified activities PoA may be shorter period than prohibitionsee s4 Exclusion from home only where Def. >18yr.o see s13
www.emlawshare.co.uk Injunctions - Transitional Provisions ss 1-10 & 13-21 not yet in force Repeal of old provisions do not apply to: Applications made before commencement date Existing orders (whether made before or after commencement date) Anything done in connections with such an order ‘existing order’ = ASBIs, ASBOs etcsee 21(1)
www.emlawshare.co.uk Injunctions -v- ASBO Wider range of agencies can apply Civil standard rather than quasi criminal Lower ASB test than ASBOs No need to prove ‘necessity’ Breach is not a criminal offence Positive requirements – long term solutions
www.emlawshare.co.uk Criminal Behaviour Orders (CBOs) Part 2 (ss22 to 33) of the Act applies where Def. convicted of an offence. (c.i.f. 20/10/14) Offence does not have to be ASB related Two conditions to be met: The Court is satisfied- 1)On a criminal standard that Df. has engaged in behaviour that has caused or is likely to cause harassment, alarm or distress to any person 2)Making the CBO will help prevent Def. engaging in that behaviour see s22
www.emlawshare.co.uk CBOs - Contents Can have prohibitions and positive requirements Can only be made if in addition to a sentence or conditional discharge see s22(6) Must consult with YOT if Def. < 18 yr.o see s22(8) Must not Interfere with times Def. normally works or attends school/ other educational establishment Conflict with any other court order see s22(9)
www.emlawshare.co.uk CBOs - Proceedings Only prosecution can apply see s22(7) Court can take into account evidence that would not have been admissible in proceedings in which Def. convicted see s23(2) Sections 49 and 39 of the Children and Young Persons Act 1933 (publicity relating to proceedings against young persons) does not applysee s23(8) Interim Orders availablesee s26
www.emlawshare.co.uk CBOs - Duration A new CBO can’t overlap with previous CBO CBO must specify period for which it has effect Where Def. < 18 y.o. when CBO made, not be less than 1 yr. and not more than 3 yr.o Where Def. > 18 y.o. when CBO made, not less than 2 yr. o. and may be indefinite Prohibitions and Requirements may have different periodssee s25
www.emlawshare.co.uk CBOs - Reviews & Breach Review ever 12 months see s28 Must consider –Compliance –Support –Whether application to vary or discharge –Carried out by Chief Police Officer who must co-operate with Local Authority Breach is criminal offencesee s30 –Summary6 months and/or fine –Indictment5 years and/or fine
www.emlawshare.co.uk Community Protection Notices (CPNs) Part 4 of the Act (ss 43-58) (c.i.f 20/10/2014) LA has power to issue CPN to a person 16 yr.o. or over or a body where it is reasonably satisfied that conduct of individual or body: –Is having detrimental effect of a persistent or continuing nature on quality of life of those in locality –The conduct is unreasonablesee s43(1)
www.emlawshare.co.uk CPNs Home Office guidance gives examples –Graffiti –Littering –Dog fouling –Skateboarding in inappropriate areas
www.emlawshare.co.uk CPNs: Requirements CPN can require individual/body: To stop doing specified things To do specified things To take reasonable steps to achieve specified resultssee s43(3) Can only impose Requirements that are reasonable to prevent/reduce the detrimental effect or the risk of its continuance/ recurrence see s43(4)
www.emlawshare.co.uk CPNs: Requirements Must give warning and reasonable time to comply before serving CPN see s43(5) Prior to issuing CPN must inform whoever you consider is appropriate see s43(6) CPN must: –Identify conduct –Explain effect of CPN (ss 46 - 51) see s43(7) –Specify times/periods within which Requirements are to be complied with
www.emlawshare.co.uk CPNs: Occupiers of Premises Conduct on, or affecting Premises that a person: –Owns –Leases –Occupies –Controls, –Operates, or –Maintains Is treated as the conduct of that person see s44
www.emlawshare.co.uk CPNs: Appeals A person served with a CPN may appeal to magistrates’ court within 21 days on following grounds: –Did not take place –Has not had detrimental effect –Not of persistent or continuing nature –Is not unreasonable, or –Is not conduct/behaviour person can reasonably be expected to control or affectsee s46 Only prohibition in CPN remains in force pending appeal
www.emlawshare.co.uk CPNs: Non compliance LA can issued FPNsee s52 Where person fails to comply with CPN LA can enter ‘land open to the air’ to carry out work Where land not ‘open to the air’ LA can serve notice on defaulter specifying –Work it intends to have carried out –The costs of the works –Inviting defaulter to consent to works
www.emlawshare.co.uk CPNs: Non compliance Failure to comply with a CPN is an offence Summary conviction a fine –IndividualNot exceeding level 4 (£2,500) –BodyNot exceeding £20,000 Defences: –Person took reasonable steps to comply, or –There is some other reasonable excuse see s48 Court can order Def. to carry out works, though not authority to enter person’s home without their consentsee s49(4)
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www.emlawshare.co.uk Closure Orders Any tenure Local Authorities and Police can apply Nuisance or disorder in property or around property and linked to it Ability to close for 24 hours without a full order (Inspector) Can extend for up to 48 hours (Superintendent) Closure Notice then hearing within 48 hours
www.emlawshare.co.uk Closure Order – to consider Establish relevant points of contact Get precedent notices updated and checked Who will bring the action where Police and LA both involved? Who will bring the action when the property is owned by an RP? Who will give evidence? Triggers mandatory ground for possession
www.emlawshare.co.uk Absolute grounds of possession 1.Breach of CBO 2.Breach of Injunction 3.Criminal conviction (prescribed in the Act) 4.Closure Order at address (not notice) 5.Breach of EPA power Absolute grounds of possession
www.emlawshare.co.uk Notice of Seeking Possession Criminal conviction: serve within 12 months of conviction or determination of appeal Breach of injunction: serve within 12 months of the finding or determination of appeal Breach of CBO: serve within 12 months of conviction or determination of appeal Closure Order: serve within 3 months of finding or determination of appeal EPA Conviction: serve within 12 months of conviction or determination of appeal
www.emlawshare.co.uk Internal Review Required Similar to the process for starter tenancies –Made within 7 days of receiving notice –Independent, internal review of decision –Must be done before the end of the notice date –Must be communicated to the tenant
www.emlawshare.co.uk Potential challenges Public law grounds – proportionality & Article 8 Equalities Act, discrimination Try to deal with these in advance by: –Keeping detailed notes –Listing other attempts at resolving problem which have failed –Consulting with other agencies –Considering impact on others, e.g. neighbours and staff
www.emlawshare.co.uk Discretionary grounds Rioting – adults only, no need to be in the locality of the property Behaviour towards a Landlord’s employee – can also be outside the locality of the property
www.emlawshare.co.uk Breaches None of the new measures help you deal with breaches of Injunctions and SPOs Remedies remain committal (injunctions) and possession (SPOs) Committal – lengthy and requires proof to the criminal standard of beyond reasonable doubt Exclusion – useful and quick if the problem is localised Possession – more cost effective than repeated committals
www.emlawshare.co.uk Community Remedy Devised by Police in consultation with Local Authority and community A list of actions which can be applied where a person has caused ASB or committed an offence and is to be dealt with outside the court process The actions must achieve one or more of the following: –Assist in the person’s rehabilitation –Make reparation for the behaviour –Punish the person
www.emlawshare.co.uk Community Remedy Criteria Authorised person must have evidence that the person has engaged in ASB or committed an offence The person must admit the incident The authorised person believes there is enough evidence for an injunction but that an alternative action is more appropriate If the incident is an offence, it must not be more appropriate to give a caution or fixed penalty notice
www.emlawshare.co.uk Community Trigger A partnership process that allows someone to have their case reviewed to see whether appropriate action was taken Not the same as a complaints process although referred to as a “complaint” Involves Police, Council, Clinical Commissioning Groups, co- opted registered providers To be a qualifying complaint the complainant must have reported the ASB incident within a month of it occurring and must make an application for an ASB case review within 6 months of making this report.
www.emlawshare.co.uk Community Trigger Process Must publish the process & procedure Single point of contact for complainants Application received, assessed to determine if it reaches the threshold for a case review Outcome communicated to complainant If threshold reached, review takes place and recommendations are made Relevant agency has a duty to consider the recommendations going forward Must publish statistics on number of complaints & outcomes each year
www.emlawshare.co.uk Next steps 1 There are a number of agencies with enforcement powers, who will lead in what type of situation? Do you have an effective multi-agency procedure? Do you have an information sharing protocol that is fit for purpose? What will you be asking in a consultation? What positive requirements might you wish to include in Injunctions? Aim to make injunctions and suspended possession orders as specific as possible
www.emlawshare.co.uk Next steps 2 Amend your standard NSPs to include the new mandatory and discretionary grounds Amend procedures to reflect the notice periods for using the mandatory grounds Who will be responsible for authorising/issuing CPNs? Consider your procedures, when will you use the mandatory grounds?
www.emlawshare.co.uk Case Study 1 Please read the case study provided and discuss the following points, in light of the new Act (please assume that all non-legal attempts have been exhausted): What action would you consider for each perpetrator? Who could be the Applicant for these actions? What legal test would you need to satisfy for these actions? What would the consultation requirements be for these actions? Who would you speak to? What would you want to discuss? What types of conditions would you want in each order? Would there be any legal requirements in relation to these? What length of order would you suggest for each of these orders? Which Court would you apply to for each of these orders?
www.emlawshare.co.uk Case Study 2 Please read the Case Study provided and imagine that you are the landlord and you have decided you want to evict the perpetrator. What grounds of possession would you rely on? What do you need to do before issuing proceedings? How long a notice period is required? What sort of defence would you expect to be filed? What kind of witness evidence would you be looking for? What would you predict the outcome to be at trial?
www.emlawshare.co.uk Conclusion Non-legal tools for ASB remain unchanged and should be used where appropriate as a first option The case law is expected to pass over to the new remedies Same principles of proportionality apply Change of focus from locality-based ASB No longer just controlling behaviour in social housing!
www.emlawshare.co.uk Welfare Reform Update Bedroom Tax Discretionary Housing Payments Benefits Sanctions Council Tax Reduction Scheme Benefit Cap Partial abolition of Social Fund – now a postcode lottery DLA to PIP – problems and delays!
www.emlawshare.co.uk Welfare Reform Update Universal Credits Idenitify your vulnerable tenants now and request direct payments Direct payments after arrears arise Short term only? News from the pilot studies Prepare your finance officers!
www.emlawshare.co.uk Welfare Reform – What Next? General election May 2015 Conservatives: continued rollout of welfare reform Labour: will abolish bedroom tax Liberal Democrats: will review and rework bedroom tax UKIP???? Deficit remains key problem, further welfare reform inevitable even under a majority Labour government
www.emlawshare.co.uk Any Questions? I am happy to answer your questions during the session or over lunch. If you would like to contact me please email Rebecca.Cobb@bevanbrittan.com or telephone 0870 194 3007 Rebecca.Cobb@bevanbrittan.com Rebecca Cobb Bevan Brittan LLP
www.emlawshare.co.uk Fraud R v Hamza (21.08.14) sentence for fraudulent right to buy application (CA) (Criminal Division). Defendant’s appeal –v- 20 months sentence refused. Aggravating factors inc, 2 applications, dishonesty from outset and planning R v Ali (31.07.14) (CA) A appealed against Confiscation Order under Proceeds of Crime Act 2002. CA reduced CO from £1.4M to £544K, Conduct does not constitute an ‘offence’ until enforcement notice served and becomes effective.
www.emlawshare.co.uk Birmingham CC -v- Beech (17.06.14) Mr & Mrs W had joint tenancy which became secure in 1980. Mr W died and Mrs W subsequently went into care home. Mrs W’s daughter moved in. BCC obtained N2Q from Mrs W in care home. CA dismissed appeal holding relationship between HO & tenant was not one that gave rise to presumption of undue influence. There was no relationship of trust & confidence. Mrs W had capacity and understood effect of N2Q Possession Claims
www.emlawshare.co.uk Aster Communities Ltd v Akerman-Livingstone (CA) (30.07.14) Mr A-L had severe prolonged duress stress disorder. Mr A-L refused to move to perm. accom. A commenced possession proceedings. A-L’s defence based on EqA 2010. CA dismissed appeal holding court should consider whether arguable defence as with Article 8. The issue of Proportionality relevant Interest of social landlord in obtaining possession will outweigh D’s interest in most but not all cases Equality Act 2010 defences (1)
www.emlawshare.co.uk Equality Act 2010 defences (2) Aster Communities Ltd v Akerman-Livingstone cont. for D to succeed in disability discrimination cases must demonstrate considerable hardship they can’t fairly be asked to bear CPR 55.8 enabled court to dispose of summarily Circumstances of A-L’s case if proven would not outweigh A’s interest and lower Ct was right dismiss defence summarily Leave given to go to Supreme Court (14.12.14 )
www.emlawshare.co.uk Nuisance Coventry v Lawrence SCt (23.07.14) L was occupier of a bungalow near a track and stadium used for speedway racing owned by C. L sued C for nuisance Supreme Ct by majority dismissed claim. In order for landlord to be liable in nuisance they must have either authorised it by letting the property or participated directly in the nuisance. On facts “Uses” could have been carried out without causing nuisance & therefore to succeed L had to prove C was a direct participant
www.emlawshare.co.uk Service Charges Daejan Properties Ltd v Griffin (14.05.14) Corroding steel beams unobserved & unrepaired 2008 one threatened structure of building Emergency works carried out, and subsequently remaining beams replaced LVT held if beams been replaced when should have been, costs of works (£333K)would have been less. LVT reduced recoverable amount to £44K Upper Tribunal upheld appeal. Historic neglect did not touch on question as to whether costs of works reasonably incurred S19(1) On hearing evidence UT found contention that savings could have been made had not been made out.
www.emlawshare.co.uk Any Questions? Please feel free to email me if you have any queries T:+44 (0)1332 378 332 M:+44 (0)7918 651 626 E:firstname.lastname@example.org