possession policy
Now that the dust has settled… is it time to review your
policy?
4 July 2011
Recent cases in the Supreme Court, Manchester City Council v
Pinnock from November last year and the conjoined cases of
Powell v London Borough of Hounslow, Hall v Leeds City
Council and Frisby v Birmingham City Council this
year, have led to many of our social landlord clients taking the
opportunity to review their anti-social behaviour policy and
procedure documents.
This is therefore a good time to remind ourselves of some of the
issues to ensure that the social landlord’s policy and procedure
does not expose them to a public law or Human Rights Act
challenge.
Section 12 of the Anti-Social Behaviour Act 2003 made it a
requirement for all social landlords to prepare and periodically
review a policy and procedure in relation to anti-social behaviour.
Here are some points to have in mind when assessing how a social
landlord might be exposed to public law and human rights
challenges.
1. Following the Court of Appeal decision in London &
Quadrant v Weaver, 18 June 2009, it is clear that for the vast
majority of private registered providers (housing associations)
Public Law applies in relation to decisions concerning the
termination of a tenant’s tenancy. Local authority decisions can
also be challenged.
2. For the purposes of possession proceedings the fact that the
social landlord is subject to public law means that a tenant can
ask a court to use its supervisory jurisdiction to assess whether
their landlord has complied with a number of basic principles which
include:
- acting fairly in accordance with the rules of natural
justice
- if the landlord has indicated that they will act in certain way
given particular circumstances, the landlord will usually be
required to meet that expectation.
3. If the social landlord contravenes the basic principles, they
might be exposed to a public law challenge. A recent example
occurred when a social landlord failed to follow its own policy
when dealing with a possession claim against a tenant with mental
health issues. The tenant successfully challenged the landlord’s
decision to commence possession proceedings.
4. The Human Rights Act has the effect that in any possession
claim the court is able to decide whether it is necessary and
proportionate to evict the tenant. This applies even if the
landlord satisfies the legal grounds for possession.
Some of the things to look at when reviewing the policy and
procedure include:
- ensuring that its terms are in accordance with the anti-social
behaviour law
- making sure that guidance given by the social housing
regulator, currently the Tenant Services Authority is incorporated
or at least, not contradicted in the policy
- there should be provision in the policy to demonstrate how the
landlord supports vulnerable groups such as those with mental
illness, the elderly and children
- there should be provision in the policy to show how the
landlord supports those complaining of anti-social behaviour.
The cases referred to above confirm that, in the vast majority
of the possession cases that a social landlord might be involved
in, the court will have the power to decide if possession is
necessary and proportionate, even in cases involving starter
tenants, introductory tenants, assured shorthold tenants and those
housed under the homelessness legislation.
It is therefore important to show in the policy and procedure
that any action taken is necessary and proportionate in all
possession cases.
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.