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Possession Proceedings (& Alternatives) to Counter Anti-Social Behaviour During COVID-19 Lockdown : Should You Stay, or Should They Go?


Trinity Housing Law barrister, Peter Marcus explores the options that social landlords have to enforce against anti-social conduct committed in rented residential property, given the last month of impromptu legislation, guidance and procedural changes:

Many headlines since the start of the Covid-19 crisis have focused on giving support to tenants by delaying the processing and enforcing of possession orders, notably on 18 March 2020, when the Government announced a “complete ban on evictions and additional protection for renters”.

For those – particularly social landlord officers – who associate tenancy enforcement less with rent arrears, and more with bad behaviour, the question begged is obvious – what about protection for the “renters” (and others besides) suffering anti-social behaviour from a small number of their renter-neighbours (or at least renters’ relatives or friends) who are, by this latest wave of press releases, guidance and legislation, nominally protected from enforcement by their landlord against their bad behaviour, due to this ban on evictions?

The rationale of the new measures is clear and laudable in terms of the priority of protecting tenants in arrears. People who have suddenly found themselves with no income are shielded – at least temporarily – from losing their home on the basis of arrears.

However, do the measures now represent, to any “renter” with a predilection for naughtiness, a licence to perpetrate ASB without having “to be concerned about the threat of eviction”? Some early statistics since the start of the crisis show hints of an unsurprising increase in domestic violence during lockdown, and it stretches credibility to imagine that ASB perpetrators will have automatically and altruistically set aside all such tendencies until the crisis has passed.

We know that the major crisis-inspired primary legislation so far, the Coronavirus Act 2020 (Sched. 29), extended all Notice periods under statutory tenancies (Rent Act, secured, assured, etc) to 3 months. Given that legislation is never retrospective unless it says it is (and this doesn’t), this means that all pre-25 March 2020 notices will not have been affected by this. Similarly, the possibility flagged up in the Act that further secondary legislation might further extend the notice period beyond 3 months will again not apply to any notices already served – unless the legislation expressly says so.

Nonetheless, from now until further notice, the possibility that has existed of a relatively swift “zero notice” response to anti-social behaviour (ASB) by use of possession proceedings based on Grounds 2 (secure) or 14 (assured), where proceedings can be issued immediately after notice is served, does not exist. Beginning possession proceedings on ASB grounds, as with all other grounds, will now require 3 months’ notice to have expired first.

However, consideration of notice periods was quickly overshadowed by a more practical moratorium introduced by new CPR Practice Direction 51Z (27 March 2020) which stayed for 90 days (ie until 25 June 2020) all possession proceedings brought under CPR Pt.55 (for tenants and trespassers alike) and all proceedings seeking to enforce an order for possession by a warrant or writ of possession (eg for breach of SPO). This is examined in Tom Tyson's article "Residential Possession proceedings – the Story so far". The Ministry for Communities Housing and Local Government (MCHLG) clarified that the intention of this was that:

…neither cases currently in the system, nor any about to go into it, can progress to the stage where someone could be evicted.

This was swiftly followed by the MCHLG’s 28 March 2020 (non-statutory) Guidance for Landlords, Tenants and local authorities. As if the message to landlords not to try to evict needed any stronger reinforcement, the MHCLG’s non-statutory guidance for private and social landlords (28 March 2020) stated (literally) in bold:

We strongly advise landlords not to commence or continue possession proceedings during this challenging time without a very good reason to do so.

So, can social landlords currently tackle ASB? Well, clearly not, any time soon, by using possession proceedings.

Yes, there is the possibility of asking for the court’s discretion in dispensing with some or any notice (s.83(1)(b) HA1985; s.8(1)(b) HA 1988; etc). And yes, the guidance does appear to leave the door ever-so-slightly open with its “only when necessary” and its “without a very good reason”. However, on balance, given the mood music, is it not best to seek other ways?

Injunctions?

Whilst kicking possession proceedings into the long grass, the new CPR PD 51Z volunteers, surely not by accident, that:

For the avoidance of doubt, claims for injunctive relief are not subject to the stay…

Of course, Part 1 Injunctions under the 2014 Act are a longstanding weapon against ASB. HMCTS Civil Court Listing Priorities (01 April 2020) clarified that high – in fact highest - on the list of “Priority 1 – work that must be done” by civil courts during this Covid-19 period are committal hearings, while also high on the list of priorities are “Anti-social Behaviour/Harassment Injunctions”. The HMCTS document qualifies this by specifying that such injunctions should not be “ancillary to possession”, but it is hard to see exactly what this means. All courts I have known insist that all ASB injunction actions are issued with a separate application form, claim number and, indeed, fee, and therefore stand as separate proceedings, even if the landlord is also applying for possession, or intends to do so soon thereafter.

While there is no doubt that Part 1 Injunctions are still allowed, could such an injunction seek to exclude a person from their home if the s.13 “violence or risk of harm” test is satisfied? I can see no reason why not.  Although this test is on paper the same as for a Power of Arrest, I think most people find in practice that judges set the bar a lot higher after granting a power of arrest before they consider effectively summarily evicting someone from their home.

Injunctions are always granted at the discretion of the court, and a home exclusion, or “ouster”, term – like the whole process involved in the Court’s granting of an injunction – depends on the judge’s discretion in deciding whether not just that the s.13 test is met but, more broadly, whether the entire injunction (that term included) is “just and convenient”.

However carefully the case for an ouster or exclusion injunction condition was scrutinised before lockdown, clearly the circumstances of a Respondent’s ousting will have to be considered more carefully now, perhaps with evidence of where else the recipient of such an order may safely relocate themselves to. But with the right circumstances and strength of good, clear evidence before the court, I see so reason why such a term might not be granted if it is deemed necessary, proportionate and fair, considering not just the rights of the respondent, but the rights of any victim of that respondent’s extreme behaviour.

Premises Closure orders?

The other anti-social behaviour tool that was generally beefed up by the 2014 Act was the power of a local authority or the police to close premises (where “premises” include shops, clubs, sheds, brothels, but also housing of any tenure, private or public).

The 2014 Act augmented the triggers for ASB premises closure, to include not just serious disorder or ASB (“nuisance to members of the public”) having been proven to have taken place at the premises but alternatively, or additionally, that there is a likelihood that it soon will take place there without such an order in place (although requiring a hefty amount of evidence to prove that to the criminal standard). Generally, getting such orders are the stuff of mere days, rather than months of litigation (although much time will have gone into the substantial work collecting evidence beforehand).

Under these measures, a Closure Notice, as soon as it is sellotaped to the property’s window or door, immediately closes premises to anyone without an express right to be there. Non-occupants, non-owners, or non-employees commit an offence merely by being at the premises once the Notice is served. This is then followed within 48 hours by an application hearing at the magistrates’ court for a Closure Order. If granted, this closes the property to anyone, whatever their previous rights, for up to 3 months, extendable by a further 3 months. (And of course, the very existence of Closure Order is then the trigger for absolute grounds possession of a secure or assured tenancy.)

Interestingly, although possibly not a power easily accessible to social landlords or local authorities themselves, the Coronavirus Act 2020 introduces its own form of new closure order, namely the Secretary of State’s Sched.22, para.6 “Power to close premises in England or impose restrictions on persons entering or remaining in them”. The justification must be to do with controlling the treatment or spread of coronavirus. The measures seem to include anything in relation to restricting entry into or the use of the premises, and it has already been reported as having been used to close a couple of pubs in South Yorkshire (where lockdown was seemingly confused with “lock-in”).  While nothing in the new legislation expressly links this power to residential premises, there is nothing at all to suggest that it cannot apply to them. It is not that hard to imagine that the circumstances leading to a “typical” ASB Act 2014 Premises Closure application for residential premises will contain elements justifying a Coronavirus closure, where for example there might regularly be large gatherings in – or many people making repeatedly short visits to – a rented home.

As with Part One Injunctions, nothing in any of the Coronavirus legislation or guidance indicates any restriction on the use of ASB Premises Closure Orders. However (as has just been pointed out to me – thank-you Ruth Chisholm of Sheffield City Council!) HMCTS publish a daily list of the only cases that magistrates’ courts are hearing during the Covid-19 crisis. This apparently exclusive list does include “closure order applications”, but appears only to allow applications brought by the Police. (The list also does not clarify whether this refers to the 2014 Act closures, or only to the newer Coronavirus Act 2020 closures.)

Social landlords and local authorities alike will therefore have to rely on the police – not the local authority – to lead on such an application, which is commoner in some areas than in others. For applications based on nuisance – rather than criminal – behaviour, the majority of evidence is likely to come from a social landlord or local authority, rather than from the Police. So, the question of whether a police-led application will work will depend on the state of cross-organisation working relationships, but also perhaps on the relationship of a local authority with its local magistrates’ court. HMCTS states that the magistrates’ courts list of cases is “under continuous review”. It remains to be seen whether HMCTS in general, or local courts individually, might be flexible in response to a request from a local authority to deal with a closure order application brought by the council. Given that, even in normal times, there is a requirement for police and local authorities to consult (and usually in practice to work quite closely) on such applications, it is hard to see why a local authority closure order application would not be acceptable when a police application is.Social landlords who are not local authorities will have to rely as always on the order being obtained not by them but by the police – again, not a problem where there is a good cross-organisation working relationship.

Any magistrates’ court asked to make such an order will, in these Covid-19 times, presumably give the evidence a tougher and more rigorous analysis than previously, including presumably where any residents rendered immediately homeless by such an order will now live (although this should in practice always have been part of a court’s consideration of use of the power in any event).

Q&As

So, with all that in mind, I thought I’d suggest some answers to a few quick questions that I have been asked by social landlords in the past couple of weeks:

Q: If we had already issued a notice to end a tenancy before the 3-month ruling came in, do we now have to issue a new notice?

A: No. The old notice remains valid (as the legislation is not retrospective).

Q: If we have not yet issued a notice, should we do so now?

A: Use your judgment, based on what you want to practically achieve. Is this a case which is so urgent that you would anyway have applied for an expedited hearing and/or partial or all notice to be dispensed with? If not, it seems unlikely it would be deemed urgent enough to meet the implied discretionary “only when necessary” or “without a very good reason” in the recent guidance. If it is such a case, I recommend making that explicit to the court by issuing an ancillary N244 application alongside possession proceedings, asking for the above accelerating measures, although it is hard to see how such urgent or otherwise extreme ASB would not be at least as well, if not better, addressed by an injunction or closure order.

Q: If we issued a correct pre-Schedule 29 notice, which has now expired, should we issue possession proceedings straight away, or wait until the end of the moratorium?

A: Bearing in mind the “strong advice” and other clear messages from the Government and the courts, any claim for possession made now will not be received by the courts with much pleasure. Although there might be a temptation to issue right away in order to have your claim sitting in an empty court admin office, so as to be first in line come the easing of restrictions, it may be wiser to save your money, wait, see how this crisis pans out, and think of alternatives. If a claim has been sitting on a court admin desk for three or more months by the time that the first possession hearing, never mind the trial, rolls around, the last pleaded incident of ASB might seem a very long time ago indeed, and any social landlord will be challenged as to whether they have made a more recent assessment of their decision to seek possession.

Q: If we have an ongoing or escalating case of serious anti-social behaviour in one of our rented properties, what can we do other than issue possession proceedings?

A: Take the hint, and issue an injunction application. We already hear of cases (including Anthony Collins solicitors in Birmingham) of ex parte interim Part One injunctions having been granted by the court with apparently relatively little problem, given functional remote communication technology and proper evidence properly and fairly presented.

Q: Can we expect to be granted an exclusion or ouster clause within an injunction?

A: As always, this is a very high test. There is nothing to indicate that such a clause will not continue to be granted only with extremely good, clear, and usually pretty strong evidence of actual or threatened violence or a serious risk of harm from the respondent. I cannot imagine that a judge (in wondering where an excluded tenant will now relocate to) will not take into consideration that the usually high hurdle of s.13 (power to exclude from home) is now even higher in the context of Covid-19 (unless of course the actions of the respondent are themselves actively contributing to the spread of the virus). And of course, the test for an ouster clause is always all the higher at the ex parte/without-notice stage of application (eg Moat Housing v Harris [2005] EWCA Civ 287).

Peter Marcus, Trinity Chambers, 14 April 2020.

In response to the escalating Coronavirus crisis, Peter and other barristers in Chambers' Housing Law team are committed to providing as much assistance as possible, including urgent advice, online resources and other support, during these challenging and unprecedented times, as such Trinity have a dedicated section of the website focused on COVID-19.

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