www.emlawshare.co.uk - PowerPoint Presentation

Slide1

www.emlawshare.co.uk

Anti-Social Behaviour, Crime & Policing Act 2014

Greg Carson

Geldards

LLP

Rebecca Cobb

Bevan Brittan LLPSlide2

Anti-Social Behaviour, Crime & Policing Act 2014

Home Office White Paper (May 2012

)

"

Putting victims first: more effective responses to

anti-social

behaviour:

"We will introduce faster and more effective powers to stop the dangerous and yobbish behaviour of those who make victims' lives a misery"

Theresa May MPSlide3

Royal Assent on 13 March 2014

Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No.1) Order 2014/630

Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No.2 Transitional and Transitory Provisions ) Order

2014/949

Anti-social Behaviour, Crime and Policing Act 2014 (Publication of Public Spaces Protection Orders) Regulations

2014Statutory Guidance July 2014

Anti-Social Behaviour, Crime & Policing Act 2014Slide4

Part 1

Civil

Injunction to tackle housing/non housing ASB

Part 2 Order on Conviction to prevent behaviour which

causes

harassment, alarm or distressPart 3 Dispersal Power for behaviour causing harassment, alarm or distressPart 4 Community Protection Notices, Public Spaces Protection Orders and Premises Closure NoticesPart 5 Possession of houses on ASB groundsPart 6 Community Remedy document & dealing with responses to complaints of ASB

Anti-Social Behaviour, Crime & Policing Act 2014Slide5

Injunctions to Prevent Nuisance and Annoyance

Part One (

ss

1-22)

Two conditions

Def. has engaged or threatened to engage in ASB

The court considers it

just and convenient to grant the injunction for the purpose of preventing the Def. engaging in ASB see s1 Slide6

Injunctions (1)

Who can apply for them?

Local Authorities, Housing Providers, Chief Officers of Police, the Environment Agency and others

see

s5

Against whom?

Any person over 10

y.o. see s1(1)If Def. < 18 y.o. maximum 12 months see s1(6)Slide7

Injunctions (2)

Venue

Def. < 18

y.o

. Youth Court, High Ct or County Ct otherwise

Consultation N/A for W/O notice applications (Int

Inj only remedy) see s14(1)Where W/O notice Injunctions made, must consult/inform before 1st on-notice return date see s14(2)Must consult/inform before apply to vary/dischargeConsult YOT if Def. < 18 y.o. see s14(3)Inform anyone else applicant app. thinks appropProcedure New section after CPR 65.9

– part IXSlide8

Injunctions – Breach (1)

No warrant required if breach of provision with a

PoA

see s9Brought before County/High Court within 24 hours of arrest see s9(3)County Court if Injunction made by Youth Court but Def. now >18

y.o

.Youth Court if Def. < 18 y.o.See Schedule 2 for powers of the Court for <18 y.o. (Supervision Order, Detention Order)Slide9

Injunctions – Breach (2)

Standard of Proof – CriminalAdults – up to 2 years Imprisonment &/or Unlimited fineYouths – Supervision, Curfew or Activity Detention (max 3 months for 14-17 yr. o)Slide10

Injunctions - What is ASB?

Conduct that has

caused, or is likely to cause

, harassment, alarm or distress to any person

Conduct capable of causing nuisance or annoyance to a person in relation to that person

occupation of residential premises

Conduct

capable of causing housing-related nuisance to any person see s 2(1) NB. Conduct over past 6 months relevant see s21(7)See ‘Reform of anti-social behaviour powers draft guidance for frontline professionals’ Oct. 2013Slide11

Injunctions - Housing-Related Conduct

‘housing-related’ means directly or indirectly relating to the housing management functions of:

Housing provider,

or

A local authority

see s2(3)‘Housing Management functions’:

Functions

conferred by any enactmentPowers of duties of housing provider or LA as the holder of an estate or interest in housing accommodation see s2(4)Slide12

Injunctions - Contents

Can have

prohibitions

and

positive

requirementsMust not interfere with the times when the Def. normally works or attends school/educational establishmentMust avoid any conflict with any other court order to which Def. is subject see s1(4)Slide13

Injunctions - Positive Requirements (1)

Before they are made:

The court must receive evidence from Supervisor about the suitability of the enforcement of the requirement

Court must be satisfied before including 2 or more requirements

, they are compatible

see s3(2)Slide14

Injunctions - Positive Requirements (2)

Must specify who will supervise the positive requirement

Ther

e is a duty of Supervisor to make:

Necessary arrangements in connection with the requirements

Promote complianceInform the applicant of compliance/non-compliance

Def. under duty to remain in contact with supervisor and notify of change in address

see s3Slide15

Injunctions - Power of Arrest and exclusion from home

Court may grant

PoA

to prohibition or requirement if it believes:

The ASB Def. has engaged/threatened to engage includes the use/threatened use of violence, or

A significant risk of harm to other persons from Def.‘Requirement’ does not = one requiring Def. to participate

in specified activities

PoA may be shorter period than prohibition see s4Exclusion from home only where Def. >18yr.o see s13Slide16

Injunctions - Transitional Provisions

ss

1-10 & 13-21 not yet in force

Repeal of old provisions do not apply to:

Applications made before commencement date

Existing orders (whether made before or after commencement date)Anything done in connections with such an order‘existing order’ = ASBIs, ASBOs

etc

see 21(1)Slide17

Injunctions -v- ASBO

Wider range of agencies can apply

Civil standard rather than quasi criminal

Lower ASB test than ASBOs

No need to prove ‘necessity’

Breach is not a criminal offencePositive requirements – long term solutionsSlide18

Criminal Behaviour Orders

(CBOs)

Part 2 (ss22 to 33) of the Act applies where Def. convicted of an offence. (c.i.f. 20/10/14)

Offence does not have to be ASB related

Two conditions to be met: The Court is satisfied-

On a criminal standard that Df. has engaged in behaviour that has caused or is likely to cause harassment, alarm or distress to any person

Making the CBO will help prevent Def. engaging in that behaviour

see s22Slide19

CBOs - Contents

Can have prohibitions and positive requirements

Can only be made if in addition to a sentence or conditional discharge

see s22(6)

Must consult with YOT if Def. < 18

yr.o see s22(8)Must not

Interfere with times Def. normally works or attends school/ other educational establishment

Conflict with any other court order see s22(9)Slide20

CBOs - Proceedings

Only prosecution can apply

see s22(7)

Court can take into account evidence that would not have been admissible in proceedings in which Def. convicted

see s23(2)

Sections 49 and 39 of the Children and Young Persons Act 1933 (publicity relating to proceedings against young persons) does not apply

see s23(8)

Interim Orders available see s26Slide21

CBOs - Duration

A new CBO can’t overlap with previous CBO

CBO must specify period for which it has effect

Where Def. < 18

y.o

. when CBO made, not be less than 1 yr. and not more than 3 yr.o Where Def. > 18

y.o

. when CBO made, not less than 2 yr. o. and may be indefiniteProhibitions and Requirements may have different periods see s25Slide22

CBOs - Reviews & Breach

Review ever 12 months

see s28

Must considerComplianceSupportWhether application to vary or dischargeCarried out by Chief Police Officer who must co-operate with Local Authority

Breach is criminal offence

see s30Summary 6 months and/or fineIndictment 5 years and/or fineSlide23

Community Protection Notices (CPNs)

Part 4 of the

Act

(

ss

43-58) (c.i.f 20/10/2014)LA has power to issue CPN to a person 16 yr.o. or over or a body where it is reasonably satisfied that conduct of individual or body:

Is having detrimental effect of a persistent or continuing nature on quality of life of those in locality

The conduct is unreasonable see s43(1)Slide24

CPNs

Home Office

guidance gives examples

Graffiti

Littering

Dog foulingSkateboarding in inappropriate areasSlide25

CPNs: Requirements

CPN can require individual/body:

To stop doing specified things

To do specified things

To take reasonable steps to achieve specified results

see s43(3)Can only impose Requirements that are reasonable to prevent/reduce the detrimental effect or the risk of its continuance/ recurrence see s43(4)Slide26

CPNs: Requirements

Must give warning and reasonable time to comply before serving CPN

see s43(5)

Prior to issuing CPN must inform whoever you consider is appropriate

see s43(6)

CPN must: Identify conductExplain effect of CPN (ss 46 - 51)

see s43(7)Specify times/periods within which Requirements are to be complied withSlide27

CPNs: Occupiers of Premises

Conduct on, or affecting Premises that a person:

Owns

Leases

Occupies

Controls, Operates, or Maintains

Is treated as the conduct of that person

see s44Slide28

CPNs: Appeals

A person served with a CPN may appeal to magistrates’ court within 21 days on following grounds:

Did not take place

Has not had detrimental effect

Not of persistent or continuing nature

Is not unreasonable, orIs not conduct/behaviour person can reasonably be expected to control or affect

see s46Only prohibition in CPN remains in force pending appealSlide29

CPNs: Non compliance

LA can issued FPN

see s52

Where person fails to comply with CPN

LA can enter ‘land open to the air’ to carry out workWhere land not ‘open to the air’ LA can serve notice on defaulter specifyingWork it intends to have carried out

The costs of the works

Inviting defaulter to consent to worksSlide30

CPNs: Non compliance

Failure to comply with a CPN is an offence

Summary conviction a fine

Individual Not exceeding level 4 (£2,500)

Body Not exceeding £20,000

Defences:Person took reasonable steps to comply , or

There is some other reasonable excuse

see s48Court can order Def. to carry out works, though not authority to enter person’s home without their consent see s49(4)Slide31

Any Questions?

Please feel free to email me if you have any queries

T:

+44 (0)1332 378 332

M:

+44 (0)7918 651 626

E:

greg.carson@geldards.comSlide32

www.emlawshare.co.uk

Anti-Social Behaviour, Crime & Policing Act 2014

Greg Carson

Geldards

LLP

Rebecca Cobb Bevan Brittan LLPSlide33

Closure Orders

Any tenureLocal Authorities and Police can applyNuisance or disorder in property or around property and linked to it

Ability to close for 24 hours without a full order (Inspector)

Can extend for up to 48 hours (Superintendent)

Closure Notice then hearing within 48 hoursSlide34

Closure Order – to consider

Establish relevant points of contactGet precedent notices updated and checkedWho will bring the action where Police and LA both involved?

Who will bring the action when the property is owned by an RP?

Who will give evidence?

Triggers mandatory ground for possessionSlide35

Absolute grounds of possession

Breach of CBO

Breach of Injunction

Criminal conviction (prescribed in the Act)

Closure Order at address (not notice)

Breach of EPA power

Absolute grounds of possessionSlide36

Notice of Seeking Possession

Criminal conviction: serve within 12 months of conviction or determination of appealBreach of injunction: serve within 12 months of the finding or determination of appeal

Breach of CBO: serve within 12 months of conviction or determination of appeal

Closure Order: serve within 3 months of finding or determination of appeal

EPA Conviction: serve within 12 months of conviction or determination of appealSlide37

Internal Review Required

Similar to the process for

starter tenancies

Made within 7 days of receiving notice

Independent, internal review of decision

Must be done before the end of the notice dateMust be communicated to the tenantSlide38

Potential challenges

Public law grounds – proportionality & Article 8Equalities Act, discriminationTry to deal with these in advance by:

Keeping detailed notes

Listing other attempts at resolving problem which have failed

Consulting with other agencies

Considering impact on others, e.g. neighbours and staffSlide39

Discretionary grounds

Rioting – adults only, no need to be in the locality of the property

Behaviour

towards a Landlord’s employee – can

also be

outside the locality of the propertySlide40

Breaches

None of the new measures help you deal with breaches of Injunctions and SPOsRemedies remain committal (injunctions) and possession (SPOs)Committal – lengthy and requires proof to the criminal standard of beyond reasonable doubt

Exclusion – useful and quick if the problem is localised

Possession – more cost effective than repeated committalsSlide41

Community Remedy

Devised by Police in

consultation with Local Authority and

community

A list

of actions which can be applied where a person has caused ASB or committed an offence and is to be dealt with

outside the court process

The actions must achieve one or more of the following:Assist in the person’s rehabilitation Make reparation for the behaviour Punish the personSlide42

Community Remedy Criteria

Authorised person must have evidence that the person has engaged in ASB or committed an offenceThe person must admit the incident

The authorised person believes there is enough evidence for an injunction but that an alternative action is more

appropriate

If the incident is an offence,

it must not be more appropriate to give a caution or fixed penalty noticeSlide43

Community Trigger

A partnership process that allows someone to have their case reviewed to see whether appropriate action was taken

Not the same as a complaints process although referred to as a “complaint”

Involves Police

, Council, Clinical Commissioning Groups, co-opted registered providers

To be a qualifying complaint the complainant must have reported the ASB incident within a month of it occurring and must make an application for an ASB case review within 6 months of making this report. Slide44

Community Trigger Process

Must publish the process & procedureSingle point of contact for complainantsApplication received, assessed to determine if it reaches the threshold for a case review

Outcome communicated to complainant

If threshold reached, review takes place and recommendations are made

Relevant agency has a duty to consider the recommendations going forward

Must publish statistics on number of complaints & outcomes each yearSlide45

Next steps 1

There are a number of agencies with enforcement powers, who will lead in what type of situation?Do you have an effective multi-agency procedure?

Do you have an information sharing protocol that is fit for purpose?

What will you be asking in a consultation?

What positive requirements might you wish to include in Injunctions?

Aim to make injunctions and suspended possession orders as specific as possibleSlide46

Next steps 2

Amend your standard NSPs to include the new mandatory and discretionary groundsAmend procedures to reflect the notice periods for using the mandatory groundsWho will be responsible for authorising/issuing CPNs?

Consider your procedures, when will you use the mandatory grounds?Slide47

Case Study 1

Please read the case study provided and discuss the following points, in light of the new Act (please assume that all non-legal attempts have been exhausted):

What action would you consider for

each perpetrator?

Who could be the Applicant for these actions?

What legal test would you need to satisfy for these actions?What would the consultation requirements be for these actions? Who would you speak to? What would you want to discuss?What types of conditions would you want in each order? Would there be any legal requirements in relation to these?What length of order would you suggest for each of these orders?Which Court would you apply to for each of these orders?Slide48

Case Study 2

Please read the Case Study provided and imagine that you are the landlord and you have decided you want to evict the perpetrator.

What grounds of possession would you rely on?

What do you need to do before issuing proceedings?

How long a notice period is required?

What sort of defence would you expect to be filed?What kind of witness evidence would you be looking for?What would you predict the outcome to be at trial?Slide49

Conclusion

Non-legal tools for ASB remain unchanged and should be used where appropriate as a first optionThe case law is expected to pass over to the new remediesSame principles of proportionality apply

Change of focus from locality-based

ASB

No longer just controlling behaviour in social housing!Slide50

Welfare Reform Update

Bedroom Tax Discretionary Housing PaymentsBenefits SanctionsCouncil Tax Reduction Scheme

Benefit Cap

Partial abolition of Social Fund – now a postcode lottery

DLA to PIP – problems and delays!Slide51

Welfare Reform Update

Universal CreditsIdenitify your vulnerable tenants now and request direct payments

Direct payments after arrears arise

Short term only?

News from the pilot studies

Prepare your finance officers!Slide52

Welfare Reform – What Next?

General election May 2015 Conservatives: continued rollout of welfare reformLabour: will abolish bedroom tax

Liberal Democrats: will review and rework bedroom tax

UKIP????

Deficit remains key problem, further welfare reform inevitable even under a majority Labour governmentSlide53

Any Questions?

I am happy to answer your questions during the session or over lunch.

If you would like to contact me please email

Rebecca.Cobb@bevanbrittan.com

or telephone 0870 194 3007

Rebecca CobbBevan Brittan LLPSlide54

www.emlawshare.co.uk

Housing Management Litigation

Greg Carson

Geldards

LLPRebecca Cobb Bevan Brittan LLPSlide55

Fraud

R

v

Hamza

(21.08.14) sentence for fraudulent right to buy application (CA) (Criminal Division). Defendant’s appeal –v- 20 months sentence refused. Aggravating factors

inc, 2 applications, dishonesty from outset and planningR v

Ali

(31.07.14) (CA) A appealed against Confiscation Order under Proceeds of Crime Act 2002. CA reduced CO from £1.4M to £544K, Conduct does not constitute an ‘offence’ until enforcement notice served and becomes effective. Slide56

Birmingham CC

-v-

Beech

(17.06.14)

Mr & Mrs W had joint tenancy which became secure in 1980. Mr W died and Mrs W subsequently went into care home. Mrs W’s daughter moved in. BCC obtained N2Q from Mrs W in care home.

CA dismissed appeal holding relationship between HO & tenant was not one that gave rise to presumption of undue influence. There was no relationship of trust & confidence.

Mrs W had capacity and understood effect of N2Q

Possession ClaimsSlide57

Aster Communities Ltd

v

Akerman

-Livingstone

(CA) (30.07.14)

Mr A-L had severe prolonged duress stress disorder.Mr A-L refused to move to perm. accom

. A commenced possession proceedings. A-L’s defence based on

EqA 2010.CA dismissed appeal holding court shouldconsider whether arguable defence as with Article 8. The issue of Proportionality relevantInterest of social landlord in obtaining possession will outweigh D’s interest in most but not all cases Equality Act 2010 defences (1)Slide58

Equality Act 2010

defences (2)

Aster Communities Ltd

v

Akerman

-Livingstone cont. for D to succeed in disability discrimination cases must demonstrate considerable hardship they can’t fairly be asked to bearCPR 55.8 enabled court to dispose of summarily

Circumstances of A-L’s case if proven would not outweigh A’s interest and lower Ct was right dismiss defence summarily

Leave given to go to Supreme Court (14.12.14)Slide59

Nuisance

Coventry

v

Lawrence

SCt (23.07.14)L was occupier of a bungalow near a track and stadium used for speedway racing owned by C.L sued C for nuisanceSupreme Ct by majority dismissed claim. In order for landlord to be liable in nuisance they must have either authorised it by letting the property or participated directly in the nuisance.On facts “Uses” could have been carried out without causing nuisance & therefore to succeed L had to prove C was a direct participantSlide60

Service Charges

Daejan Properties Ltd

v

Griffin

(14.05.14)

Corroding steel beams unobserved & unrepaired2008 one threatened structure of buildingEmergency works carried out, and subsequently remaining beams replacedLVT held if beams been replaced when should have been, costs of works (£333K)would have been less. LVT reduced recoverable amount to £44KUpper Tribunal upheld appeal. Historic neglect did not touch on question as to whether costs of works reasonably incurred S19(1)On hearing evidence UT found contention that savings could have been made had not been made out.Slide61

Any Questions?

Please feel free to email me if you have any queries

T:

+44 (0)1332 378 332

M:

+44 (0)7918 651 626

E:

greg.carson@geldards.com