Housing and Anti-Social Behaviour: The Way Ahead
Scottish Office Consultation
- In May 1995 The Scottish Office consulted on proposals to legislate to introduce probationary tenancies in Scotland. Similar proposals had earlier been made for England and Wales, leading to the provisions the Housing Act 1996, which give public sector landlords the discretion to require all new tenants to serve a one-year probationary tenancy before qualifying for the full tenancy of their home. Tenants completing their probationary period satisfactorily would automatically be granted secure tenancies. If, however, tenants did not behave responsibly in relation to their landlord or their neighbours, then the landlord would be able to terminate their tenancy at any time during the probationary period.
- The Scottish consultation exercise in 1995 offered two options. The first option corresponded to that now adopted for England in Wales; the second option was initially proposed by the former Dundee District Council. This system would allow landlords to target limited-period probationary tenancies on former tenants who had previously been evicted for serious anti-social behaviour (or rent arrears) but who the local authority was considering rehousing. By attaching behaviour conditions landlords could monitor tenants and bring the tenancy to a speedy end should the conditions not be observed.
Scottish Reaction to Proposals
- Ninety-two responses were received. The large majority of Scottish respondents were concerned about the DETR proposal and what was perceived as the resulting injustice of punishing the responsible majority of prospective tenants. They were more favourably disposed to the concept of the limited used of probationary tenancies. Many felt that a facility to rehouse on the basis of a probationary tenancy would be a positive option in such circumstances and send a signal to the tenants that they had to behave. We reported these findings in the Autumn of 1995 but the then Ministers decided to await the Committee's recommendations before announcing conclusions.
- The Scottish Affairs Committee took account of the Department's consultation and of reactions to it. The Committee was generally attracted to the Dundee model on the basis that, as it only applied to those with a proven history of anti-social behaviour, it avoided unnecessary antagonism. The Committee therefore recommended, by a majority, that legislation should be introduced to make it possible to offer a probationary tenancy instead of a secure tenancy only in certain defined circumstances. These would be where:
the local authority had passed a resolution authorising the use of probationary tenancies;
the tenancy was offered expressly on the basis that it was a probationary tenancy; and
within the past three years the tenant had been evicted from a secure or an assured tenancy because of anti-social behaviour.
- The Committee recommends that such tenancies would last for one year and would be converted automatically into secure tenancies on satisfactory completion of that period. It further proposes that the review procedure should be defined by regulation and should include the right to a hearing.
- The Committee accepted that to make the proposal effective requires a workable legal definition of the circumstances in which a probationary tenancy might be offered.
- The DETR model is to give authorities discretionary powers to introduce one year tenancies for all new tenants. This was proposed in response to pressures from some of the larger English authorities and received support during consultation. The necessary powers were introduced under the Housing Act 1996. During our consultation, the clear majority of landlords and other housing interests were opposed to such an approach. The Committee's compromise proposal represents a Scottish solution which meets the particular needs of Scottish housing authorities.
- A recent survey of landlords in England and Wales by Sheffield Hallam University (published in May 1999) found that a third of local authorities (31%) had adopted introductory tenancies and a further 12% were planning to introduce them in the next 12 months. This compared to one in ten Registered Social Landlords (13%) using starter tenancies (which are assured shorthold tenancies) with a further 18% planning to do so in the next year. Nearly half of the local authorities which had adopted introductory tenancies had subsequently evicted tenants in the first 12 months; 68% for rent arrears; 19% for neighbour nuisance.
- During the Scottish consultation exercise there was strong opposition to giving local authorities the power to introduce probationary tenancies for all new tenants as now adopted in England and Wales. Both tenants' groups and landlords felt that this would introduce a substantial degree of insecurity for new tenants, the vast majority of whom could be expected to behave properly and would present no problems to their neighbours. It was argued that probationary tenancies would do nothing to deal with the problems of anti-social behaviour that could arise from existing tenants and that patterns of behaviour would not be established early enough to prevent tenancies being confirmed at the end of the probationary period. (This point would have additional force if the tenancy were for less than 12 months). There was more support for the notion of introducing probationary tenancies for tenants where there was a history of anti-social behaviour by them or members of their immediate family. The Select Committee supported this more restrictive approach as being better suited to the needs of Scottish housing authorities.
- So local authorities should be enabled, not compelled, to introduce probationary tenancy schemes and that such schemes should be confined to people previously subject to eviction proceedings for anti-social behaviour (the so-called Dundee model) rather than extending to all new tenants.
- Probationary tenancies will require primary legislation. An appeals mechanism would also require to be put in place and good practice guidance issued to landlords. While on the face of it probationary tenancies could be ended more quickly than secure tenancies, it is likely that any appeals procedure would lead to the possibility of lengthy delays. There are also likely to be ECHR implications. Both issues are under active consideration, and the forthcoming report on Court delays may offer a way forward in expediting court procedures in all eviction cases whether in secure, assured or probationary tenancies.
- In the forthcoming Housing Bill, we will legislate to introduce probationary tenancies in Scotland. Once introduced, probationary or introductory tenancies should prove a helpful mechanism to landlords who want to rehabilitate former tenants but who are wary of offering a permanent tenancy for fear that the offending behaviour may recur.
- Our plans for probationary tenancies go further than suggested by the Scottish Affairs Committee. It is our intention to make it possible for a sheriff in making a decree for possession on the anti-social behaviour grounds specified in paragraph 8 of Schedule 3 to the Housing (Scotland) Act 1987, to impose a probationary tenancy on the tenant.
- The probationary tenancy will be for one year's duration (subject to review) which should provide sufficient time for the tenant to prove that he/she merits the reinstatement of a secure tenancy. A shorter period, say six months, would run the risk of the tenant giving the appearance of a change in behaviour, in the knowledge that he/she does not have to sustain the good behaviour for too long.
Suspension of Right to Buy
- The Scottish Executive is aware that, on occasion, exercise of the right to buy can be used by anti-social tenants to try to frustrate proceedings for re-possession. There are no figures available on the extent of such abuse and the issue was not considered by the Scottish Affairs Committee. However, we intend now to legislate to suspend the Right to Buy from anti-social tenants while eviction proceedings are taking place.
- In the forthcoming Housing Bill we will legislate to enable the suspension of the Right to Buy for anti-social tenants while eviction proceedings are taking place and in circumstances where tenants are subject to a probationary tenancy. We intend that this period would not count towards discount entitlement.
'Fast -track' Eviction
- The new grounds for eviction brought in under the Crime and Disorder Act 1998 and described above, are designed to allow for tougher action against drug-dealers and other criminals by extending the grounds for eviction to cover the behaviour of visitors to the property; by providing that it will no longer be necessary to prove actual nuisance or annoyance, but simply the likelihood of nuisance and annoyance; and by extending the grounds to cover criminal acts in the locality of the house, not just within the house itself.
- The aim is to make it possible for landlords to take tough action to deal with those who are carrying out their criminal activities in and around tenanted properties. The person must have been convicted of the offence before the local authority can take action to evict the tenant on this ground. The sheriff will exercise his discretion in deciding whether in all the circumstances it is reasonable to evict the tenant.
- The requirement that there should simply be a likelihood of nuisance or annoyance is intended to deal with the difficulties encountered in practice in persuading neighbours to give evidence. Under the new provisions, the victim of the behaviour does not have to give evidence that nuisance or annoyance had been caused. Evidence can come instead from third parties, for example, the police or employees of the landlord, to support a judgement that nuisance or annoyance was likely to be caused by the behaviour in question.
- As indicated above, we have commissioned a study by the CIH to monitor the use of the new grounds for eviction and seek views on their effectiveness. The study will show whether the new powers have led to speedier evictions in such cases.
'Fast Tracking' - The Multi Agency Approach
- Much can be done to speed up the process of eviction without change to the current legislation, through a multi-agency approach to the problem.
- The Barmulloch Initiative in Glasgow is a good example of multi-agency working. It is one of two pilot schemes launched by Glasgow City Council in December 1996 (the other is in West Drumoyne).
- Its objectives include the creation of a safe and stable community through a comprehensive action plan involving housing staff, the police, schools, the community and others. The agencies are working together to produce an effective Crime Prevention Programme; working with Drugs Action Team, Youth Alcohol Addiction Team and Glasgow Drugs Prevention Team to raise awareness especially among young people and vulnerable groups on the dangers of drug abuse and to develop a local drug prevention strategy including young people in its formulation and delivery, and in promoting positive alternatives to abuse.
- A Community Partnership Agreement has been developed with police, community and others to tackle anti-social behaviour and formal protocol arrangements have been entered into between Glasgow City Council's legal department, the police and the procurator-fiscal for 'Fast-Tracking' for drugs cases in both Barmulloch and West Drumoyne. Evidence would suggest that this protocol has been successful in speeding up the prosecution process from 1 or 2 years to 3 months in a small number of drug related cases.
- The Scottish Executive will now evaluate the formal protocol arrangements entered into between Glasgow City Council's legal department, the police and the procurator-fiscal for 'Fast-Tracking' for drugs cases in both Barmulloch and West Drumoyne with a view to similar arrangements being replicated elsewhere
Strengthening of Compulsory Transfers
- The grounds for possession under the Housing (Scotland) Act 1987 are divided into 'conduct' grounds and 'management' grounds. Conduct grounds entitle the landlord to evict the tenant completely and for this reason, require proof of the offending conduct by the tenant and are subject to sheriff's views as to the reasonableness of eviction as a remedy for that conduct. Conduct grounds include anti-social behaviour as defined and extended by s23 of the Crime and Disorder Act. There are also a small number of management grounds which entail an obligation on the landlord to provide the tenant with suitable alternative accommodation, and, in terms of the role of the courts, require only that it appears to the court that the landlord has a ground for recovery of possession and that other suitable accommodation will be available for the tenant when the order takes effect.
- Included among these 'management' grounds is where the tenant of the house (or any one of joint tenants) or any person residing or lodging with them or any sub-tenant of his has been guilty of conduct in or in the vicinity of the house which is a nuisance or annoyance and in the opinion of the landlord it is appropriate in the circumstances to require the tenant to move to other accommodation.
- We will therefore use the forthcoming Housing Bill to strengthen the legislation to ensure that management grounds can be used effectively to allow a house to be repossessed provided it appears to the court that the landlord has a ground for recovery of possession and that other suitable accommodation will be available for the tenant when the order takes effect.
Hence, we will strengthen the management ground for possession of a house where anti-social behaviour has taken place under new legislation to ensure that proceedings can be expedited; and;
that the role of the courts should simply be to be satisfied that suitable alternative accommodation is available.
Sociable Neighbourhood Initiative
- There is a need for a positive approach to creating sociable neighbourhoods rather than simply a reactive approach to complaints about neighbour nuisance. There are many fine examples of innovative approaches being undertaken by local authorities and of multi-agency approaches to creating stable safe communities. But there are also areas where there is a distinct lack of good practice and no evidence of partnership working and the Executive is looking for ways to encourage innovation and demonstrate the range of ways in which anti social behaviour can be both prevented and managed. The Executive is aware that challenge funding can provide a useful impetus for culture change and innovation and is willing to consider setting up such a fund but it is also open to other suggestions as to how local authorities might be further encouraged to be innovative in their response to anti-social behaviour.
- As part of the Partnership for Scotland agreement, the Scottish Executive is committed to consult on new ways, such as a tribunal, of dealing with harassment by landlords, eviction proceedings, unfit conditions and enforcement of repairs.
- Some housing professionals have suggested that there is a need for new mechanisms to handle sensitive housing law issues in a way that is quicker, more straightforward, informal and accessible than the sheriff court, while still ensuring that this is not at the expense of fair procedure. The establishment of a housing tribunal to do this would be one option, but this does not have universal support (the Scottish Affairs Select Committee in the report of its inquiry into Housing and Anti-Social Behaviour (December 1996) cast some doubts on its effectiveness, for example. This is discussed below.) and consultation would enable views to be canvassed on the key areas in need of reform and a range of options to achieve this.
- Consideration would also need to be given to whether there should be a network of tribunals across the country or whether a single tribunal would be more effective. It would be expensive to set up a housing tribunal system and primary legislation would be required. The Select Committee in its inquiry into housing and anti-social behaviour received a substantial number of submissions and statements in evidence urging them to transfer jurisdiction from the sheriff court to new tribunals set up to deal with cases of anti-social behaviour and neighbour disputes, or perhaps a broader range of housing cases. However, opinion was fairly evenly divided with opposition to it, or serious doubt concerning it, spread over a range of interest groups, including local authorities, tenants groups and lawyers. Most who were in favour of such tribunals saw them as the answer to the supposed deficiencies of the court system, though the point was made that regardless of how it is done, the same rules of natural justice must apply.
- The Committee found that whilst there was considerable scope for improvements within the existing framework, the sheriff court and summary cause procedure were not currently being used to their full potential in this area and the unsuitability of the existing arrangements had not, therefore, been established.
- The Committee said that any proposal for a new tribunal needed to address issues of jurisdiction, adjudicators, procedures, decision criteria, legal aid or other state funded representation. It was the answer to these questions that would determine the degree to which tribunals would be different to courts. Once the details of the tribunal system had been spelled out it would be necessary to explain why these new tribunals would carry out the function of hearing eviction cases better than the courts do.
- The Committee opined that the improvements desired by those in favour of tribunals, e.g. on reducing delays in eviction procedures, could be carried out within the current judicial system. Nor was it clear as some had claimed that tribunals would be any more informal and accessible than the sheriff courts. There were also difficulties over the scope of the tribunal's work, the lack of provision of legal aid in tribunal cases and the expense of creating local tribunals to deal with a small caseload when the sheriff court already provided justice at a local level, though these criticisms were less significant if the proposal became one for a system of specialist tribunals or courts with responsibility for all housing cases. However, such a proposal went beyond the scope of the Committee's inquiry and the Committee concluded that, " it is not clear that a tribunal system would necessarily have the advantages it is assumed to possess over courts, and we would oppose achieving greater speed or informality at the expense of fair procedure. We therefore oppose the creation of a distinct tribunal for dealing with cases of anti-social behaviour."
- The Scottish Executive's Partnership Agreement commitment to look at this whole area will allow us to consult on whether it seems likely the scope for any tribunal would range wider than simply considering cases of anti-social behaviour. Arguably, such a tribunal could consider a wide range of complaints including anti-social behaviour, repairs, harassment by landlord and rent appeals (also relevant in the context of the single social tenancy). A decision would have to be taken as to whether the tribunal would have legal powers or not, including powers of eviction. There would be likely to be strong opposition to tribunals taking the place of the sheriff courts and it may be that any tribunal might simply be empowered to take a case to the sheriff court on behalf of a plaintiff. This might be beneficial in terms of the availability of legal aid. A decision would also be required as to whether the tribunal should be a new body or bodies (e.g. a system of specialist tribunals or courts), or whether it might simply be an extension of an existing body.
- Views are sought on the introduction of some system of housing tribunal and, if so,:
- whether such a system should have judicial determinations/arbitration;
- who should administer it;
- whether such a system should provide an avenue of redress for any complaint by a tenant, whether anti-social behaviour, repairs, landlord harassment, rent levels or services;
- whether it should be available to owner-occupiers and private sector tenants as well as public sector tenants.
Single Social Tenancy
- We will shortly publish our plans for a new single social tenancy and a steering group is to be set up to work up proposals for a single social tenancy agreement, based on the Model Secure Tenancy Agreement (MoSTA). The single social tenancy agreement will spell out in detail the behaviour expected of a tenant, of anyone residing with him/her and of any visitors and the consequences should the terms of the tenancy be broken.
- [We are awaiting the outcome of research on ASBOs including their success in tackling anti-social behaviour in both private rented and owner occupier sectors.
- In collecting information on the number of ASBOs, we will consider their impact in the private sector. This will assist in informing any future evaluation of such orders and techniques used to establish behaviour e.g. by the use of professional witnesses.
- We will investigate how best to strengthen sanctions against perpetrators in the private rented or owner occupied sector. This will include drawing on existing powers and good practice and the consideration of new measures to deal with the problems in this sector.