By Amy Tagoe, Housing law solicitor
There has been a Home Office announcement that the commencement of the new anti social behaviour injunctions set out in Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 will be delayed until 2015. This is to allow necessary changes to be made to civil legal aid.
The new Anti-Social Behaviour Injunction will replace the current Anti-Social Behaviour Injunction, drinking banning orders, intervention orders and individual support orders. The new injunction can be used against home owners and those in private rented accommodation and not just social housing tenants. They can be imposed on children aged 10 and over and are not time restricted.
The orders can be imposed when the court finds it “just and convenient” to do so and the alleged anti social behaviour need only be proved on the balance of probabilities. The new orders can also impose positive requirements and not just restrict behaviour.
The new injunctions can be applied for by local government, police and housing associations although there is scope for further bodies to be added to that list. There is also a power to exclude people from their home if there has been used or threatened violence or significant risk of harm.
Any alleged breach of the injunction will be dealt with by committal proceedings.
Parts 2-6 of the Act will commence as planned on 20th October 2014. This includes the new mandatory ground for possession.
The right to seek possession under the new mandatory ground will be triggered by one of five conditions which are set out in the Housing Act 1985 S84A for secure tenants and Housing Act 1988 Ground 7A for assured tenants.
Because the grounds for possession are mandatory any deficiencies in the Notice will amount to a defence to the proceedings and there will be no power for the court to dispense with service of the Notice.
The new mandatory ground is very severe. It can be triggered by the behaviour of someone other than a tenant, including a visitor to the property even if that behaviour occurs away from the property and the tenant has had no involvement with the behaviour.
It would seem that the only way to defend the proceedings in the absence of any procedural deficiency would be to plead an Article 8 proportionality defence and it is likely that such defences will become more common. It will remain to be seen whether the high threshold for establishing an Article 8 defence of “exceptional interference” will change through the development of case law after the implementation of the new act.