Steps to an Antisocial Behaviour Notice
25. This section outlines steps in the use of ASBNs which reflect the legislation and the policy that underlies it. Whether developing its own more detailed policies or dealing with individual cases, an authority may need to go further in considering particular circumstances and the interpretation of the legal requirements as they apply to those circumstances. The local authority's actions should be informed by the Enforcement Concordat, adopted by all Scottish local authorities. Guidance on best practice in implementation of the Concordat can be found on the CoSLA website 7 .
26. The antisocial behaviour notice powers have been made available to assist local authorities to deal with particular cases of antisocial behaviour, and to help them to challenge, through individual cases, the general approach of some landlords. Whether and how the powers are used must be a matter for the authority's judgement, taking account of its other arrangements for dealing with antisocial behaviour and unacceptable landlords.
27. Local authority staff dealing with antisocial behaviour should be made aware that, if a private landlord's approach is a contributory factor in a case of antisocial behaviour that they are dealing with, there may be scope to take useful action under the Part 7 powers. They should know how such action would be taken - for example, whether they should consult with an identified person within the authority, or whether they should themselves proceed on the basis of guidance. Relevant staff in partner organisations such as the police should also be made aware of this scope for action.
28. Where a case arises, the antisocial behaviour concerned should be clearly identified and recorded, bearing in mind that the definition of antisocial behaviour in this context is as specified in paragraph 7 above. This is different from the definition on which other action (such as an ASBO) relating to the antisocial tenant may be founded.
29. The first step (alongside any concurrent action against an antisocial tenant, occupant or visitor) should be to approach the landlord to discuss the situation and his or her role in it. This approach may resolve the situation if, for example, it shows that allegations are unfounded or that the landlord has already taken action (such as the engagement of an agent) that will help the situation. Otherwise the approach to the landlord will provide further information about the situation. Any additional or revised aspects of the antisocial behaviour concerned should also be recorded.
30. If an initial approach does not resolve the situation, the authority should decide what would be appropriate action for the landlord to take in order to address the antisocial behaviour that has been identified and recorded in terms of paragraphs 28 and 29 above. It should also decide what advice and assistance it can reasonably provide to the landlord to help him or her to resolve the particular situation. Paragraph 29 above is relevant to deciding the appropriate action and assistance. In urgent cases it may be necessary to telescope the steps in this and the previous paragraph.
31. The next stage is that the local authority should tell the landlord that it is considering issuing an ASBN and the management action it considers the landlord should take. It should at the same time give the landlord advice and offer assistance about taking those steps. It is a legal requirement that this should precede any ASBN (paragraph 2 of the Antisocial Behaviour Notice (Advice and Assistance) (Scotland) Regulations 2005) and so the authority should ensure that it is done and recorded. The regulations require the local authority to provide:
- general advice in relation to antisocial behaviour notices;
- advice and assistance directly relevant to the management of the antisocial behaviour that the local authority has been identified; and
- advice in relation to the consequences of not managing the antisocial behaviour.
The Executive has produced and previously issued a document that local authorities can use for the general elements of the advice to be given. That document can be tailored to suit local circumstances, such as appropriate contact details and the availability of mediation services.
32. The regulations do not require any specific timescale or method for providing advice and assistance to the landlord, since circumstances can vary so widely. In particular, where there are cases of urgency, such requirements could be counter-productive. However, it should be clear to the landlord that this stage has been carried out and if necessary the local authority should be able to demonstrate in court that it has done so. Authorities will be familiar with enforcement processes in connection with a range of their functions, and staff may wish to seek advice from colleagues on how the authority deals with matters such as the recording of actions where urgency prevents the use of the recorded delivery of documents.
33. If after giving advice and assistance the local authority considers that the landlord has not taken appropriate management actions it can serve an ASBN. The decision to do this should be reasonable and should be in accordance with any policies or practices established by the authority in connection with enforcement. In particular, regard should be had to the Enforcement Concordat (see paragraph 25). It is advisable to keep a record of the consideration leading to the decision, as this will be helpful in the event of a reference to the Ombudsman or other challenge.
34. There is no laid down form for the notice but it must (section 68(3) of the 2004 Act):
- describe the antisocial behaviour that is to be addressed;
- specify the actions that the landlord should take for the purpose of dealing with that behaviour and the timescale for doing so;
- state the consequences of failing to take those actions in the time specified; and
- inform the landlord of the right to request that the ASBN be reviewed.
Although in many cases the notice will simply formalise the behaviour and steps that have been identified in processes to this point, it would be sensible to take stock and check whether the situation has evolved and whether the behaviour and steps should be defined differently from the way in which they were defined at earlier stages.
35. The ASBN needs to be framed carefully. It fixes the relevant behaviour and action for the rest of the process. If the description of behaviour is inaccurate a penalty founded on the notice may be rejected on appeal. If the behaviour or action is defined too narrowly, further steps in the process may be compromised because the notice is no longer relevant to the changing situation. If the action required is too general and vague, the landlord may rightly claim that it is not clear what he or she must do and that the notice is therefore not competent. If the action required goes beyond what a reasonable landlord using recognised good management practice might expect to do in the circumstances, it is open to challenge. The person framing the notice must therefore try to anticipate likely developments and to steer between these dangers.
36. The timescale given for compliance with the instructions in the ASBN must be reasonable. The setting of timescales is a matter for the discretion of each local authority, and will vary depending on the actions to be undertaken and any considerations relevant to the particular case.
37. It will be possible for a local authority to serve an ASBN on the same landlord more than once. An example of when this situation might arise would be where a landlord took appropriate action to address a management related situation, that action was effective, but the situation has again declined as a result of a return to previous practices or neglect over time of the advice given by the local authority. Another example is where a landlord has problems of antisocial behaviour in more than one property and is failing to address them. Depending on the seriousness of the situation, local authorities may wish to consider previous ASBNs in determining whether more serious action may be required in respect of a particular landlord.
38. Details of serving ASBNs are given in Annex 1. An ASBN is not served on the tenant or other occupants.