ASB case law up-date
A summary of ASB-related case law in 2012 and 2013
Dean Underwood, Barrister 20 November 2013 © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
What can you expect? ► Focus on ASB-related possession proceedings and case law ► Occupiers with security of tenure: ► Key provisions of the Housing Acts 1985 and 1988 ► Issues for the court ► Occupiers lacking security of tenure: common issues for the court
► Overview of recent case law ► Time permitting: ASB case-law surgery ► Your chance to ask questions
► Case law on sentences for committal © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Occupiers with security ► Statutory grounds for possession
► Secure tenants: Grounds 1 and 2, Schedule 2, Housing Act 1985 ► Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed. ► The tenant or a person residing in or visiting the dwelling-house— (a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or (b) has been convicted of (i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or (ii) an indictable offence committed in, or in the locality of, the dwelling-house.
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Occupiers with security ► Statutory grounds for possession ► Assured tenants: Grounds 12 and 14, Schedule 2, Housing Act 1988 - Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed. - The tenant or a person residing in or visiting the dwelling-house— (a) has been guilty of conduct causing or likely to cause a nuisance or
annoyance to a person residing; visiting or otherwise engaging in a lawful activity in the locality, or (b) has been convicted of (i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or (ii) an indictable offence committed in, or in the locality of, the dwelling-house. © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Occupiers with security ► Statutory grounds for possession
► Assured tenants: Ground 13, Schedule 2, Housing Act 1988 ► The condition of the dwelling-house or any of the common parts has deteriorated owing to acts of waste by, or the neglect or default of, the tenant or any other person residing in the dwelling-house and, in the case of an act of waste by, or the neglect or default of, a person lodging with the tenant or a sub-tenant of his, the tenant has not taken such steps as he ought reasonably to have taken for the removal of the lodger or sub-tenant.
• For the purposes of this ground, “common parts” means any part of a building comprising the dwelling-house and any other premises which the tenant is entitled under the terms of the tenancy to use in common with the occupiers of other dwelling-houses in which the landlord has an estate or interest. © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Occupiers with security ► Key issues for the court: ► Has the landlord (‘L’) served the tenant (‘T’) with notice of its intention to seek possession;
or is it just and equitable to dispense with the need for such a notice? s.83(1), HA 1985 and s.8(1), HA 1988
► If so, does L have a ground or grounds for possession? s.84(1), HA 1985 and s.7(1), HA 1988
► If so, is it reasonable to make an order for possession? s.84(2), HA 1985 and s.7(4), HA 1988
► If so, should the court make an outright order, postpone the date for possession or suspend enforcement of the order? s.85(2), HA 1985 and .9(2), HA 1988 © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Occupiers with security ► Possible, ancillary issues for the court, subsumed within ‘reasonableness’: ► ‘Public law’ issues: ► compliance with ASB policy ► compliance with Public Sector Equality Duty see s.149 Equality Act 2010
► Disability issues: ► Disability discrimination ► Failure to make reasonable adjustments to agreements, policies etc see ss.15 and 20 Equality Act 2010
► Human rights issues, including Article 8 ‘proportionality’
e.g. Manchester CC v Pinnock [2011] 2 AC 104 and later cases
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Occupiers without security ►
Common issues for the court: ► ‘Formality’ issues
► validity of notices ► ‘Public law’ issues: ► compliance with ASB policy e.g. Barber v Croydon LBC [2010] HLR 26
► compliance with Public Sector Equality Duty see s.149 Equality Act 2010
► Disability issues: ► Disability discrimination ► Failure to make reasonable adjustments to agreements, policies etc see ss.15 and 20 Equality Act 2010
► Human rights issues, including Article 8 ‘proportionality’ © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: the difficulty of challenging a discretion ► Liverpool Mutual Homes v Nugent [2012] EWCA Civ 1245 ► Assured tenant ► Possession: Grounds 12, 13 and 14, Schedule 2, HA 1988 ► Allegations: waste and nuisance
► Findings: failures to co-operate with L; shouting obscenities ► Outright possession ► Permission to appeal refused: ► findings supported by evidence ► entitled to make outright order
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: of criminal behaviour and suspension ► Birmingham City Council v Ashton [2013] HLR 8 CA ► Secure tenant ► Convictions: ► possession of an offensive weapon in 2004
► two counts of affray in 2007 ► possession of an offensive weapon in 2010 ► Sentence: community order ► Detention under Mental Health Act 1983
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: of criminal behaviour and suspension ► Birmingham City Council v Ashton continued … ► Possession: Grounds 1 and 2, Schedule 2, HA 1985 ► Psychiatric evidence: 20-30% risk of ASB in future said to be low ► Suspended possession order made ► Local authority appealed ► Appeal allowed: ► significant risk of further ASB: 20-30% not ‘low’ ► no weight given to past lapses in sobriety ► onus on T to provide cogent evidence to show that ASB will not recur or will be
unlikely to do so © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: Article 8 & the ‘starter’ tenancy ► Riverside Group Ltd v Thomas [2012] EWHC 169 (QB) ► ‘Starter’ tenancy → complaints about ASB of T and visitors ► Notice served and internal appeal dismissed
► Possession claim adjourned on several occasions ► Subsequently, ASBI breached → L sought to commit ► High Court determined possession claim: ► no right to a further internal appeal ► threshold for terminating ‘starter’ tenancy not high, for sound policy reasons ► Article 8 defence not seriously arguable and should be dismissed summarily ► no power to suspend enforcement or postpone possession beyond s.89 HA 1980 ► no incompatibility between s.21 HA 1988 and Article 8 ECHR © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: Article 8 & the introductory tenancy ► Corby BC v Scott; West Kent HA v Haycraft [2012] HLR 23 ► S: introductory tenant; arrears + complaints of noise nuisance
► H: ‘starter’ tenant; complaints of indecent exposure and nuisance ► Claims for possession ► against S - dismissed as disproportionate under Article 8 ECHR ► against H - allowed despite Article 8 ECHR defence ► Appeals by CBC and H joined for hearing ► Appeal by CBC allowed: facts came nowhere near Article 8 threshold ► H’s appeal dismissed: judge entitled to find Article 8 threshold not crossed ► Courts should be astute to dispose of unarguable Article 8 defences early on © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: the importance of CPR compliance ►
Byrne v Poplar HARCA [2012] HLR 33
• Joint, assured tenants • Complaints about B over 7 year period - Loud music, hammering, banging on walls, throwing excrement, recording of neighbours
• Police obtained closure order; ASBI also made • Possession claim issued: Grounds 12 and 14, Schedule 2, HA 1988 • B failed to comply with directions and was debarred from defending • Relief from sanctions refused and outright possession granted • Appeal dismissed: judge had not erred in principle and was not plainly wrong © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: the importance of formalities ►
Camden LBC v Stafford [2012] HLR 39 CA
• Introductory tenancy • Complaints about noise nuisance • Notice served under s.128 HA 1996 • Review decision did not support claim for possession ‘at that time’ • Further complaints → claim for possession • Claim dismissed: L could not rely on original notice as review had not upheld decision to seek possession; and no other notice in writing had been given
• Appeal dismissed
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: Non-secure tenants and the NTQ ► Fareham BC v Miller [2013] HLR 22 ► Non-secure tenancy ► T imprisoned: others in occupation ► Complaints of ASB → notice to quit served ► T given second chance on release but recalled to prison → L seeks possession ► Possession refused: L had ‘revoked’ NTQ ► Appeal allowed: ► not possible to revoke NTQ in law ► no new tenancy created ► no seriously arguable Article 8 defence © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: the significance of hearsay ►
Boyd v Incommunities Ltd [2013] EWCA Civ 756
• Assured tenant → rent arrears and complaints of ASB • Claim for possession → findings of ASB: visitor nuisance, loud door knocking, B intimidating neighbours, shouting, screaming etc
• Judge relied on 3 anonymised statements exhibited to officer’s statement
• Authors said to be too fearful to identify themselves • Appeal against findings dismissed: - practice of admitting anonymised hearsay well-established - judge had properly directed himself about weight to be attached to it
- but could have referred expressly to s.4 Civil Evidence Act 1995
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: Sentencing for contempt ►
Amicus Horizon Ltd v Thorley [2012] HLR 43
• Tenant of flat in shared accommodation for elderly
• Complaints about threatening and abusive behaviour → possession claim • Repeated breaches of interim ASBI • Possession granted; four breaches of ASBI proved • Sentences: 2, 4, 2 and 4 months’ imprisonment respectively, concurrent • Appeal allowed: - Sentencing Guidelines Council’s Guidelines for Breach of an ASBO apply - 4 months’ imprisonment excessive - Sentences of 2, 6, 2 and 6 weeks’ imprisonment substituted
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: Sentencing for contempt ► Doey v Islington LBC [2013] HLR 13 CA ► Secure tenant ► Interim ASBI breached: loud music ► Final ASBI breached: threat of violence
► Application to commit → 16 weeks’ imprisonment ► Sentencing Guidelines for Breach of an ASBO apply: Thorley applied ► Appeal dismissed ► Sentencing guidelines correctly applied ► Drunkenness at time of breach not a mitigating factor!
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Case law: Sentencing for contempt ► Willoughby v Solihull MBC [2013] EWCA Civ 699 •
Secure tenant: mental health issues; recovering heroin addict and alcoholic
•
Complaints: arguing, shouting, swearing, banging
•
Breach of interim ASBI admitted → 2 month, suspended prison sentence
•
Breaches of final ASBI admitted → 12 months’ imprisonment in total: - suspended sentence activated + 10 months for new breaches
•
Appeal allowed: - sentence to be for minimum appropriate period - previous sentence + 3 months for new breaches substituted
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
Thank you for listening! Dean Underwood Barrister Dean Underwood
[email protected]
www.hardwicke.co.uk/people/underwood-dean
© Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
ASB case law up-date
A summary of ASB-related case law in 2012 and 2013
Dean Underwood, Barrister 20 November 2013 © Hardwicke, Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB
|
www.hardwicke.co.uk
|
@Hardwickelaw
