A fresh alternative Home | News & events | Legal updates | Beware public law arguments in anti-social behaviour possession proceedings

Beware public law arguments in anti-social behaviour possession proceedings

09 March 2010

Local authorities have for some time been aware that public law arguments historically dealt with by the Administrative Court, can now be raised as defences in the County Court.

Following  Weaver v London Quadrant Housing Association, registered providers (RPs) can now be subject to the same scrutiny by the courts.

These legal decisions are beginning to filter through in case law, as can be illustrated by the recent case of Shane Barber v Croydon London Borough Council, a judgment given by the Court of Appeal on 11 February 2010.

The facts

Mr Barber was a non-secure tenant of Croydon London Borough Council, having been allocated his property as a homeless applicant. He had learning difficulties and a personality disorder of a permanent nature. It was accepted by all parties that he was a ‘disabled person’ within the meaning of the Disability Discrimination Act 1995.

The incident which led to Mr Barber being served with a Notice to Quit occurred on 22 May 2007 when he assaulted his landlord’s caretaker: he threatened to ‘do something’ if some broken glass was not cleared up; he shouted and swore at the caretaker and then proceeded to spit in his face; kick him as well as repeatedly threaten him.

This incident was reported to the local authority’s anti-social behaviour officer who took the decision to serve a Notice to Quit. On doing so, he applied the local authority’s policy, which recognised the need for the anti-social behaviour team to work in partnership with other agencies, including the social services department and the Integrated Mental Health Service in cases involving vulnerable people.

‘Vulnerable people’ were defined as including: ‘those who had been diagnosed with mental illness and personality disorders’. Mr Barber, therefore, fell within the policy and was dealt with in accordance with it.

The policy also set out three categories of anti-social behaviour. Mr Barber’s conduct fell within category 3, the most serious category. In such cases, the policy said that legal action would ‘almost always’ take place.

A psychiatric report was obtained which stated that Mr Barber’s disability was likely to have contributed to his behaviour; that his mental health had been ‘stable’ whilst he had been living in his property and his life would descend into chaos if he was evicted.

As a result of the report, the local authority filed a further witness statement from its anti social behaviour team manager which stated, that despite the isolated nature of the incident, it remained proportionate to seek a possession order. It considered this to be a very serious breach, despite the fact that it was an isolated incident.

The decision

When the matter came before the court, an immediate possession order was made which Mr Barber appealed. He argued that the local authority’s anti-social behaviour team manager pressed ahead with possession proceedings in breach of its own policy as it had not consulted with the Integrated Mental Health Service.

Furthermore, no consideration had been given about whether anything less than possession would have solved the problem. He, therefore, argued that the local authority’s decision to seek possession of his property based on a single act of anti-social behaviour by a disabled person remained one which no reasonable person would consider justifiable.

The appeal

When the matter came before the Court of Appeal, the appeal was allowed and the Possession Order was set aside.

The Court of Appeal stated that the decision reached by the anti-social behaviour team manager was one which no landlord, faced with the facts of this case, could reasonably have taken.

Whilst the assault on the caretaker was serious and obviously unacceptable, the local authority’s policy on vulnerable people was to explore alternative solutions which might lead to the prevention of anti social behaviour in the future.

Whilst in other cases, there will be no choice but to proceed with possession, there was a requirement to consult with specialist agencies which was likely to ensure possession proceedings were confined to cases where it was actually necessary to prevent a repetition of such behaviour.

The Court of Appeal, in particular, looked at the fact there was an absence of any misbehaviour by Mr Barber either before or after the incident in question, and also had specific regard to the psychiatric assessment carried out in relation to him. Consultation with other agencies should, therefore, have taken place and advice should also have been taken as to whether some alternative remedy would have solved the problem.

Furthermore, the local authority’s anti-social behaviour team manager had not given the psychiatrist’s report sufficient weight and appeared to have rejected what it concluded, without giving any reasons.  He had not considered the possible consequences for Mr Barber of losing his flat and he treated this as any other category 3 anti-social behaviour case, which was simply wrong in principal.

What this means

There are lessons to be learnt by all landlords when they consider this case.

It is clear that in cases where tenants have little or no security this is the approach the courts are going to take when dealing with possession applications in relation to a tenant suffering mental health issues.

Landlords should therefore ensure that, more than ever, they consider their anti-social behaviour policy and follow it closely. The courts are also likely to scrutinise decisions to take possession proceedings in relation to Assured Shorthold tenants and demoted tenants.

On a slightly more positive note, the Court of Appeal did state that if the landlord ‘put its house in order’ and took all administrative steps, including the reconsideration of its decision to seek possession, then fresh possession proceedings could be brought.

Ordinarily, such a step would be seen as an abuse of process but in this particular instance, it would not.

© Shoosmiths. This page is for general information: it is not legal advice. Please read our full terms and conditions for details of the disclaimers and exclusions which apply.

Are any of the issues in this article giving you a headache? If so, we want to know

Name *

Comments*

The information you provide here will be used solely for the purposes of responding to your query for more information see our privacy policy.
 

Get in touch

Dot Pawlowski

Associate
T: 03700 86 4197
I: +44 (0)121 625 4197
E: dot.pawlowski@shoosmiths.co.uk