Building alternatives

Cracking down on anti-social behaviour is just one of the tricky problems facing housing law specialists. Lucy Trevelyan discovers there is also a north-south divide

In the housing law field, anti-social behaviour (ASB) is unavoidable. Everyone is talking about it and, since local authorities and registered social landlords were given extensive new powers to curb troublesome tenants, it appears that pretty much any action can be construed as anti-social.


Dawn McPherson, an assistant solicitor at south London firm Fisher Meredith, explains: ‘Anything and everything appears to be capable of being considered ASB. I heard of one housing association introducing contracts stipulating that tenants weren’t to swear. It’s just taking things too far.


‘Those being targeted are extremely vulnerable people who may suffer from mental health problems. Landlords seem to be going to court just because they can. They are ignoring the guidance about how they are supposed to try mediation and ASB contracts first.’


Paul Forster, partner at north-east firm Crutes and chairman of Resolve Mediation Services, which provides alternative methods of resolving housing disputes, says that almost every day there is a new initiative to combat ASB, with the Anti-Social Behaviour Act 2003 and the Housing Act 2004 adding particularly potent weapons to social landlords’ armouries.


Social landlords can now wield anti-social behaviour orders (ASBOs), anti-social behaviour injunctions (ASBIs), exclusion orders and demotion orders to use against anti-social tenants – and are being put under intense political pressure to use them.


Anthony Cross, assistant head of legal services at Leicester City Council, says: ‘There is greater awareness and expectation that local authorities have a leading role, in conjunction with other enforcement agencies, in dealing with ASB.’


Dafydd Jones, solicitor at Gwynedd Council, adds: ‘ASB is at the top of our agenda because of government policy. There was talk that the government wanted to make it mandatory for councils to take action on ASB so, as with housing disrepair cases, if we didn’t do something we would be sued.’


Faced with objections from local authorities, however, the government shelved the plan but warned it would be monitoring the situation closely and would introduce tougher measures if councils did not tackle ASB rigorously, he says.


Of the new powers, he says that ASBOs – the much-heralded device designed to curb out-of-control youngsters – and suspended possession orders are laudable in theory but not so effective in practice since they rely on disgruntled residents complaining more than once before actual action can be taken.


‘The biggest problem for housing officers is the reluctance of complainants to come forward. The downside with an ASBO is that if they breach the order, you need the complainant to come forward again for action to be taken. That’s the problem with suspended possession orders as well.’


Mr Jones says the beauty of ASBIs is that those served with one must immediately stop misbehaving, and cannot intimidate potential witnesses for fear of facing a contempt charge. ‘It gives confidence to the complainant,’ he explains.


However, Richard Copson, a housing solicitor at Manchester firm Glaisyers, maintains that such devices designed to tackle ASB – which take up a large proportion of his department’s time – are often ‘Draconian’ and are issued unnecessarily against vulnerable people without proper investigation of the truth.


‘With ASBIs – which often have a power of arrest attached – instead of investigating and nipping a problem in the bud, the authority has already got an order in place which hardens the positions on both sides. I’d like to see matters investigated more thoroughly before they go to court and to see less political will going into stamping out anti-social behaviour and more going into looking into its causes.’


He says demotion orders – which end a secure or assured tenancy and replace it with a sort of probationary tenancy – are particularly harsh, given that they allow authorities to oust a troublesome tenant without having to return to court.


Ms McPherson says: ‘We haven’t see one of these used but I know they are very, very subject to challenge. We would judicially review anyone who tried it.’


She says what is more common in her London patch are closure orders – which allow police or local authorities to evict tenants and close a property for three months if they believe the property is being used for taking class A drugs.


‘The threshold is extremely low and often extremely vulnerable people are being left homeless because the authority will say they have made themselves intentionally homeless. They can be appealed but by the time it has gone through the system, the order will usually have expired.’


Mr Jones rejects the contention that the new ASB powers are Draconian and are being used to target vulnerable members of society. He also claims the use of ASBIs has meant less need to deploy the more drastic possession orders.


He says: ‘I would say those who are vulnerable are those who can’t sleep at night because of noise and disturbances caused by the so-called vulnerable. These powers are not Draconian; they protect the vulnerable – that’s their purpose. We are a public body so we have to act reasonably, otherwise judicial review proceedings will be taken against us.’


Andrew Dymond, a barrister practising from Arden Chambers in London, says that working as he does for both social landlords and defendants in such cases, he sees both sides.


‘On the one hand, there is great satisfaction in seeing the relief of tenants who have suffered intolerable harassment. On the other hand, I do feel in some cases that landlords are too quick to take action when there may be more that can be done to address the behaviour of tenants and their children, whose behaviour may stem from personal circumstances.’


These orders do appear to highlight one of several major north-south divides found within the housing law field, whereby a course of action is used to different extents in different parts of the country. Housing disrepair cases, apparently, are no exception.


Mr Forster says Master O’Hare’s ruling last year on the use of conditional fee agreements (CFAs) in housing disrepair cases ‘punctured the bubble for the disrepair industry by restricting the amount of costs available to claimants’ solicitors’. The decision in Bowen (and ten others) v Bridgend County Council directed that claimant solicitors must advise clients to consider pursuing their claims through legal aid. If they still proceed on a CFA, the success fee should be no more than 25%.


‘The number of new claims has dramatically fallen away over the last year,’ Mr Forster says. ‘There has been something of a north-south divide though – councils in the north of England have been swamped with disrepair claims generated by claims farmers and funded by CFAs.’


Andrew Brookes, partner at south London firm Anthony Gold and chairman of the Housing Law Practitioners Association, says the real change in the housing law field recently has been the decline in the number of legally aided suppliers, and the crisis affecting the remaining suppliers.


‘A properly funded legal aid scheme is essential for tenants and other occupiers of housing to enforce their rights. Although the decline in the number of housing lawyers has not been as bad in some other areas, most housing lawyers are turning away clients.’


Although the Legal Services Commission has declined to up rates for housing lawyers in all but the niche area of possession order proceedings, its concern at the dwindling numbers is apparent in its pledge last month of £180,000 towards a three-year pilot training scheme at the College of Law in London, which enables students to experience dealing with housing law.


Mr Dymond predicts that in the future, many housing disputes will be taken away from the court process. He says: ‘The jurisdiction of the residential property tribunal service now extends to almost every dispute that can arise in the context of long leases, and the tribunal will have jurisdiction over most of the disputes which may arise under the Housing Act 2004.


‘The 2004 Act contains much that is invaluable for the enforcement of proper housing standards in the private sector. In particular, the new housing health and safety rating system, which replaces unfitness for judging the standard of accommodation, is a remarkable achievement which will allow authorities to target their resources far more effectively.’


He adds: ‘The 2004 Act has laid the foundations for the possibility of removing almost any housing dispute to the tribunal. The current emphasis on alternative dispute resolution will doubtless have an effect. Housing lawyers as a group will need to engage in the debate on when and how mediation can appropriately be used to resolve housing disputes and, whilst guarding against allegations of protectionism, must ensure that tenants and others retain a right to proper representation.’


Mr Forster concludes ‘Mediation is a self-help remedy for tenants, helping them to sort out their own problems. Landlords increasingly recognise the value of mediation and the potential costs savings. The sooner a problem is tackled, the better the chances of resolving it for the benefit of all. Mediation is effective before the fists start to fly.’


Given the problems with anti-social behaviour, that has to be a good thing.


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