1. Anti-Social Behaviour Litigation:
Recent Developments And Current Themes Before The Courts
Paul Burns
Head of Local Government & Social Housing
Exchange Chambers – Liverpool, Manchester and Leeds

2. Overview Mental health and capacity in civil injunctions / committal
Equality Act 2010 and possession proceedings
The extended discretion in possession proceedings in light of the Court of Appeal decision in City West Housing Trust v Massey & Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
Article 8 ECHR and possession claims for private registered providers and private landlords

3. Capacity Summary of Legal Principles Regarding Capacity (1)
A person is assumed to have capacity unless it is established that they lack capacity [S1(2) MCA 2005]
Capacity is issue based - not generic
Capacity is decided on the balance of probabilities and involves:
The ‘diagnostic test’ at s2(1) MCA 2005 [i.e. does the person have an impairment or disturbance in the functioning of the mind or the brain]; and
The ‘decision-making test’ at s3(1) MCA 2005 [i.e. is the person (assisted if necessary in an appropriate way such as sign language) unable to (i) understand the information relevant to the decision, (ii) retain the information, (iii) use or weigh that information as part of the decision making process, or (iv) communicate the decision

4. Capacity Summary of Legal Principles Regarding Capacity (2)
All practical steps to help a person make a decision are to be taken before the person is treated as lacking capacity
The fact that a person is able to retain information relevant to a decision for only a short period does not prevent him from being regarded as able to make the decision
The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision

5. Capacity Summary of Legal Principles Regarding Capacity (3)
It is not necessary for a person to comprehend every detail of the issue. Rather the question is whether the person can comprehend and weigh the salient details. Different people may give different weight to different factors
Unwise decisions must be distinguished from decisions based on a lack of understanding of risks or an inability to weigh up the information about a decision
The court must consider all relevant evidence in coming to a decision and not just the expert evidence

6. Capacity and Civil Injunctions / Committal (1)
Wookey v Wookey [1991] 3 All ER 365:
The court will not act in vain by granting an injunction which is idle and ineffectual and therefore an injunction should not be granted to impose an obligation to do something which is impossible or cannot be enforced
The injunction must serve a useful purpose for the person seeking relief and there must be a real possibility that the order, if made, will be enforceable against the defendant

7. Capacity and Civil Injunctions / Committal (2)
P v P (Contempt of Court: Mental Capacity) [1999] 2 FLR 897
The defendant needs to understand:
That an order has been made
That the order forbids certain acts
Each of the prohibitions
That if the forbidden acts are carried out then he / she will be punished by the court and can be fined or sent to prison
Expert assistance to explain an order can be utilised (and should then be evidenced)

8. Capacity and Civil Injunctions / Committal (3)
R (on the Application of Cooke) v DPP [2008] EWHC 2703 (Admin)
If a defendant is truly incapable of understanding or complying with the conditions of an order then it would be wrong in law to make the order
Any such incapacity issues should normally be evidenced by a psychiatrist and not by a psychologist or a psychiatric nurse
A defendant who suffers from a personality disorder may on that account be liable to disobey an order. However that is not a sufficient reason for a court to exercise its discretion not to make an order.
This reasoning was approved in Fairweather v Commissioner of the Police for the Metropolis [2008] EWHC 3073 (Admin)

9. Capacity and Civil Injunctions / Committal (4)
Pender v DPP [2013] EWHC 2598
ASBO granted banning begging in a particular way in a specific location
Defendant appealed to the Crown Court claiming lack of capacity to understand and comply
Medical evidence supported learning difficulties, schizophrenia and a severe addiction to nicotine. The begging was a direct consequence of the addiction. The defendant lacked capacity to understand the prohibition and the consequences of breach. He was incapable of complying because he was compelled to seek nicotine by the only means available to him, in effect begging.
The medical evidence was unchallenged. The Crown Court allowed the appeal
HC refused to interfere. The medical evidence had not been challenged

10. Equality Act 2010 What is a ‘Disability’?
Section 6(1):
A person (P) has a disability if:
P has a physical or mental impairment; and
The impairment has a substantial and long term adverse effect on P’s ability to carry out normal day-to-day activities
‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (published May 2011)

11. Direct and Indirect Discrimination
Equality Act 2010
Direct and Indirect Discrimination
Section 13(1) prohibits direct discrimination:
“A person (A) discriminates against another (B) if, because of a protected
characteristic, A treats B less favourably than A treats or would treat
others” e.g. refusing to provide housing to a Christian
Section 19(1) prohibits indirect discrimination:
“A person (A) discriminates against another (B) if A applies to B
a provision, criterion or practice which is discriminatory in relation to
a relevant protected characteristic of B’s”

12. Indirect Discrimination (continued)
Equality Act 2010
Indirect Discrimination (continued)
Accordingly indirect discrimination applies where:
(a) prima facie the provision, criterion or practice has nothing to do with that person’s protected characteristic, and
(b) the rule or practice would apply to everyone, but the rule or practice:
Puts or would put the person (and anyone else sharing that persons protected characteristic) at a disadvantage when compared with a person or people who do not have that protected characteristic; and
Cannot be justified by the service provider as a ‘proportionate means of achieving a legitimate aim’
e.g. having a policy of not letting property to people under 25 because it is believed that such people generally act in an antisocial way

13. Equality Act 2010 – Disability Discrimination
Section 15(1):
A person (A) discriminates against a disabled person (B) if:
(A) treats (B) unfavourably because of something arising in
consequence of (B)’s disability; and
(b) (A) cannot show that the treatment is a proportionate means of
achieving a legitimate aim
Section 15(2):
Subsection (1) does not apply if (A) shows that (A) did not know, and could
not reasonably have been expected to know, that (B) had the disability

14. Equality Act 2010 – Disability Discrimination
Accordingly a disabled tenant may have a defence to a possession action
if:
the reason for the possession proceedings is “something arising in consequence of the tenant’s disability”; and
the landlord cannot show that its action is a proportionate means of achieving a legitimate aim
the landlord knew, or could reasonably be expected to know, that the tenant had the disability

15. Equality Act 2010 Liverpool Housing Trust v Abdullah [CC]
Facts:
Mr A was an elderly assured tenant in a sheltered scheme
Mr A was intermittently abusive and aggressive and frightened other residents
LHT sought to engage with him and his support workers and warned him (ABC)
LHT sought and obtained an ASBI
Mr A continued to behave antisocially
LHT reconsidered and issued a possession claim
Mr A then sought to discharge the ASBI on the basis of a lack of capacity
Medical evidence from a consultant established that Mr A lacked capacity to comply with the ASBI and so the ASBI was discharged by agreement
Mr A defended on the basis, inter alia, that LHT were discriminating on account of his disability
Mr A contended that LHT’s alleged unlawful actions ought to lead to its claim being dismissed

16. Equality Act 2010 Liverpool Housing Trust v Abdullah [CC]
HHJ Wood QC:
When considering the question of proportionality, it is necessary to place in the balance the steps which were open to the Claimant to address the Defendant's disruptive behaviour, on the one hand and the extent of that behaviour and its effect on others on the other hand. At one extreme which would clearly represent a lack of proportionality, if there had been only minor or isolated incidents which were dated, and if there were other options open to the Claimant short of eviction, the Claimant would fail to discharge the burden, the legitimate aim being the discharge of the Claimant's management functions in respect of all the tenants within the scheme
However, that is not the situation which prevails here. The Defendant lacks capacity. Whereas in the past an acceptable behaviour contract had been tried (and ultimately failed) and more recently the antisocial behaviour injunction proceedings had been discontinued, it was apparent that alternative methods of dealing with the Defendant's behaviour were not available. In simple terms, if the Defendant cannot be deemed to understand what he being required to do, the Claimant cannot take effective steps to control his behaviour

17. Equality Act 2010 Liverpool Housing Trust v Abdullah [CC]
HHJ Wood QC:
“Therefore, I agree with the Claimant's Counsel that the absence of
alternative effective measures, together with the extent and duration of the
Defendant's behaviour and its deleterious effect on residents and staff
members provides a sufficient discharge of the burden of establishing
proportionality in the context of section 15 of the Equality Act 2010”

18. Possession, Anti-Social Behaviour and the Extended Discretion
Manchester City Council v Higgins [2005] EWCA Civ 1423
Grounds
Reasonableness: Cumming v Danson [1942] 2 All E.R. 653 at 655 (includes effect of conduct – past, present and future)
Extended discretion:
Very much a question for the future
Devising the best method of protecting neighbours against the re-occurrence of the ASB which has led to the order being made
Previous unheeded warnings
Insight / remorse
Sound basis for the hope that the ASB will cease

19. Possession, Anti-Social Behaviour and the Extended Discretion
Sandwell MBC v Hensley [2007] EWCA Civ 1425 per Gage LJ
“The effect of Mousah is to stress the serious nature of a breach of condition which involves the committing of a criminal offence. The more serious the offence, the more serious the breach. Convictions for several offences will obviously be even more serious. In such circumstances, it seems to me that the court should only suspend the order if there is cogent evidence which demonstrates, as Ward LJ put it in Higgins, a sound basis for the hope that the previous conduct will cease”
“… it is irrelevant that he was punished in the criminal court”
I would add that the Council, as a provider of social housing, have a duty to make sure (so far as it can) that its properties are properly managed and are kept free from the sort of activity with which we are concerned”
“In my view, unless there was cogent evidence providing a real hope that the defendant had mended his ways, the Council was … entitled to an outright order”

20. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
Cultivation of cannabis cases with review of the ‘extended discretion’
Facts:
Both tenants allowed a room to be used for cultivation of a substantial amount of cannabis (scale unclear in Roberts - in Massey 300 plants)
Both tenants admitted breach of tenancy but disputed the facts
Roberts (convicted of permitting production of cannabis) said he had been pressurised by a local gang who used a padlocked room for cultivation – he said they paid him £1,200
Massey claimed no knowledge of the cannabis, saying that her ex-partner was solely responsible. He had been convicted of cultivation. She had been questioned but not prosecuted

21. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
At trial a district judge presided in each case:
Neither tenant disputed that it was reasonable to order possession but both tenants sought the benefit of the extended discretion
The tenants were not primarily responsible for the breach and there was no evidence of previous offences or breaches
Each tenant expressed a willingness to comply with the tenancy in future
The court found that both tenants lied on oath in their evidence:
Roberts claimed the gang kept the room padlocked and threatened him but when the police raided the property the door to the room was open and the padlock was on a table
Massey lied ‘without excuse’ by denying knowledge of the cannabis farm. She showed no willingness to co-operate with her landlord and no remorse.

22. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
Outcome at trial:
The DJ accepted that Roberts should be made the subject of a suspended possession order on terms requiring tenancy compliance and allowing monthly inspection of the property by the landlord (perhaps on 2 hours’ notice but not clear from the judgment: paras 12 & 29)
At trial Massey agreed to conditions: compliance with the tenancy agreement, her ex-partner staying away and inspections on less than 2 hours’ notice. The court found a sound basis for hope that there would be compliance with the conditions imposed and imposed an SPO
BOTH landlords appealed (from the district judge to the circuit judge)

23. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
First Appeals to circuit judge:
In Roberts the CJ overturned the suspension of the possession order as being a ‘perverse’ decision. The CJ imposed an outright possession order because in his view the tenant’s dishonest evidence provided no evidence of reform
In Massey the CJ said that while he may not have suspended possession he would not interfere with the DJ’s exercise of discretion
The tenant appealed to the Court of Appeal in Roberts and the landlord appealed to the Court of Appeal in Massey. Permission given by Vos LJ

24. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
Second Appeals to CA:
The CA decided that both DJ’s had been entitled to make the orders they had made so in Roberts the tenant regained his suspended possession order and in Massey the tenant’s suspended possession order remained
In their judgment the CA gave some wider guidance on the exercise of the extended discretion in possession claims of this sort

25. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
Guidance:
The trial judge has a wide discretion. Each case turns on its facts
There is no ‘checklist’ for judges nor need for a ‘cast iron guarantee’
The focus at the extended discretion stage is on the future
A ‘sound basis for the hope that the previous conduct will cease’ requires cogent (not just credible) evidence i.e. persuasive (a realistic standard)
No principle that the ‘cogent evidence’ must come from the tenant themselves (but the tenant should normally give evidence) e.g. in a mental health case support from professionals may be relevant. Alternatively an inspection condition may provide support for the ‘cogent evidence’ requirement

26. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
Guidance:
Dishonest evidence is not a bar to making an SPO: “even a tenant who genuinely wants to comply may give false evidence … because they think the truth is unlikely to be plausible or acceptable” but a tenant who lies runs the serious risk that the court will not accept their assurances about the future … “giving false evidence is a very serious matter”
Where a tenant lies but a judge finds cogent evidence that the conduct complained of has ceased and imposes an SPO “that will require careful consideration and appropriate explanation when the judge gives his reasons for making an SPO”. The judge should determine which of the tenant’s evidence he accepts and which he rejects

27. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
Guidance:
“Obviously a tenant has to be willing to comply with his tenancy agreement” but there is no principle that the ‘cogent evidence’ must come only from the tenant e.g. professional support may be relevant. An inspection condition may support the ‘cogent’ evidence requirement
A judge should not require a landlord to do more than is reasonable in the circumstances. Resources are a consideration but sometimes social landlords and the police may be expected to take an active role on their housing stock / area. This will always be a matter for the trial judge

28. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
Guidance:
The scope of the appellate jurisdiction: “The question whether another court would make the same decision does not require to be asked”
Matters which a court may wish to take into account include:
Has the tenant co-operated with the landlord in its investigation?
Has the tenant has been honest and given full disclosure of previous bad behaviour?
Has the tenant has shown genuine remorse (at an early stage)?
The extent and duration of the tenant’s bad behaviour

29. Possession, Anti-Social Behaviour and the Extended Discretion
City West Housing Trust v Massey
Manchester and District Housing Trust v Roberts [2016] EWCA Civ 704
Analysis:
The CA gave ‘some limited guidance’
Each case is fact sensitive
A future cast iron guarantee as to conduct is not required (and never was – this would be an unrealistic test)
The ‘cogent’ evidence need not come from the tenant
Useful clarification of the Higgins test i.e. ‘a sound basis for the hope that the conduct will cease’ requires ‘cogent’ evidence i.e. persuasive
Otherwise as with all cases where a landlord seeks outright possession there should be an emphasis on thorough preparation, planning and presentation of the case

30. Possession & Article 8 ECHR
Are you a public authority (core public / hybrid public)?
London & Quadrant Housing Trust v The Queen on the Application of Weaver
& Equality & Human Rights Commission [2009] EWCA Civ 537
S6(1) HRA 1998:
It is unlawful for a public authority to act in a way which is incompatible with
a Convention right
Article 8 ECHR provides, inter alia:
Everyone has the right to respect for their family and private life and home .... [Art 8(1)]; and
There may be no interference with that right by a public authority except in accordance with the law and so far as is necessary in a democratic society .... for the prevention of disorder or crime .... or for the protection of the rights and freedoms of others [Art 8(2)]

31. Article 8 ECHR – PRP’s & Practical Consequences
Manchester CC v Pinnock [2010] UKSC 45
Hounslow LBC v Powell; Leeds CC v Hall; B’ham CC v Frisby [2011] UKSC 8
A person at risk of eviction by a public authority has the right to challenge the proportionality of the eviction and to have it (and any disputed facts necessary to its determination) decided by an independent tribunal notwithstanding under domestic law the right of occupation has ended
A proportionality defence should initially be dealt with summarily and rejected unless it crosses the threshold of being ‘seriously arguable’

32. Article 8 ECHR – Private Landlords
McDonald v McDonald & Ors [2016] UKSC 28
Can an Article 8 proportionality defence apply to a private sector landlord?
The Supreme Court held that while Article 8 is engaged when a judge makes an order for possession, if the landlord is not a public authority or a body exercising a public function then the court can treat the question of the necessity or proportionality of the interference with that right as already concluded by the underlying statutory scheme regulating the recovery of possession
So the position of private landlords is currently different from the position of core public (or hybrid public) landlords

33. Anti-Social Behaviour Litigation: Recent Developments and Current Themes before the Courts
Josephine Morton,
Senior Associate

34. Possession proceedings
Pre-action protocol for possession claims by social landlords
Came into force on 6th April 2015
Paragraph 1.6(a) – Ensure that information is communicated to tenants in ways the tenant can understand
Paragraph 1.6(b) – If the tenant is under 18 or is particularly vulnerable the landlord should consider at an early stage:
Whether or not the tenant has the mental capacity to defend possession proceedings and, if not, make an application for the appointment of a litigation friend in accordance with CPR 21; and
Whether or not any issues arise under the Equality Act 2010.

35. Possession proceedings
Pre-action protocol for possession claims by social landlords
Part 3 – Mandatory grounds for possession
Para 3.2:
In cases where the court must grant possession if the landlord proves its case then before issuing any possession claim social landlords—
(a) should write to occupants explaining why they currently intend to seek possession and requiring the occupants within a specified time to notify the landlord in writing of any personal circumstances or other matters which they wish to take into account. In many cases such a letter could accompany any notice to quit and so would not necessarily delay the issue of proceedings; and
(b) should consider any representations received, and if they decide to proceed with a claim for possession give brief written reasons for doing so.

36. Possession proceedings
Pre-action protocol for possession claims by social landlords
Part 3 – Mandatory grounds for possession
Para 3.3:
In these cases the social landlord should include in its particulars of claim, or in any witness statement filed under CPR 55.8(3), a schedule giving a summary—
(a) of whether it has (by statutory review procedure or otherwise) invited the defendant to make representations of any personal circumstances or other matters which they wish to be taken into account before the social landlord issues proceedings;
(b) if representations were made, that they were considered;
(c) of brief reasons for bringing proceedings; and
(d) copies of any relevant documents which the social landlord wishes the Court to consider in relation to the proportionality of the landlord’s decision to bring proceedings.

37. Absolute ground for possession
Part 5 ASBCPA 2014
Secure tenancies – Ground 84A Housing Act 1985
Assured tenancies – Ground 7A Housing Act 1988
Government’s published position is: “the new absolute ground is intended for the most serious cases of anti-social behaviour and landlords should ensure that the ground is used selectively”

38. Absolute ground for possession
Can be used where:
Tenant, or person residing in dwelling-house, has:
been convicted of a serious offence
breached an injunction
breached a criminal behaviour order
been convicted of an offence under the Environmental Protection Act 1990
Dwelling-house has been subject to a closure order

39. Absolute ground for possession - Review Procedure
Statutory requirement for Local council tenants to be offered a right of review of the landlord’s decision to seek possession.
The request for a review must be made in writing within seven days of the notice to seek possession being served on the tenant.
The review must be carried out before the end of the notice.
The landlord must communicate the outcome of the review to the tenant in writing.
If the decision is to confirm the original decision to seek possession, the landlord must also notify the tenant of the reasons for the decision.
If the review upholds the original decision, the landlord will proceed by applying to the court for the possession order.
Statutory review procedure does not apply to housing associations tenants. However, the Government expects housing associations to offer a similar non-statutory review procedure (in the same way that they have done so for starter tenancies for example).

40. Absolute ground for possession - Important changes
Unlike with discretionary grounds for possession, landlords will not need to prove to the court that it is reasonable to grant possession.
Can be used with discretionary grounds or on its own.
The idea is that the court will be more likely to determine cases in a single hearing.
Purpose is to expedite the eviction of the most serious anti-social tenants to bring faster relief for victims.
The new ground is an additional tool which will provide more flexibility for landlords but will be applicable only in limited circumstances.

41. Absolute ground for possession - Important changes
The court has no power to dispense with service of a notice for possession under the new absolute ground as they can do under the discretionary ground for anti-social behaviour.
Local council tenants will have a statutory right to request a review of the landlord’s decision to seek possession under the absolute ground. The same is expected of housing association tenants.
The court will only have the discretion to suspend a possession order made under the new ground to a date no later than 14 days after the making of the order (unless it appears to the court that exceptional hardship would be caused, in which case it may be postponed to a date no later than six weeks after the making of the order.)
Not really absolute – still subject to challenges under ECHR Article 8 (proportionality) / Equality Act 2010 / Public law challenges.

42. Goode v Paradigm Housing , October 2015
Assured tenant since
Recovering drug user.
Closure notice issued by the Police on for 48 hours and extended for 3 months.
On the landlord served a Notice of Seeking Possession on the basis of Grounds 12 and 14 (discretionary grounds) and Ground 7A (absolute ground).
The hearing was listed on The landlord was legally represented and the tenant appeared in person.
The tenant sought an adjournment in order to secure legal aid.
Judge refused adjournment request on grounds that this was a mandatory claim for possession.
Possession order made on Ground 7A on
Tenant appealed.

43. Goode v Paradigm Housing , October 2015
Grounds for appeal:
Failure to grant the adjournment constituted a breach of the tenant’s Art 6 rights;
Ground 7A  is subject to tenant’s ECHR rights;
The tenant had a potential defence because her conduct had improved both before and after the closure order had been made. She had stopped unsavoury elements coming to the premises and had stopped taking drugs.
The landlords had not offered her a review of the decision to seek possession contrary to Home Office Guidance (Anti-Social Behaviour, Crime and Policing Act 2014: Reform of ASB powers, Statutory guidance for frontline professionals, Page 62).
The tenant was granted permission to appeal.
The matter was subsequently settled with the landlord agreeing to vary the possession order to a suspended order on terms.

46. Click to add title
Click to add text