In our last edition of Housing Landscape we considered some of the practical effects on social housing providers following the Weaver and Doherty cases in view of the likelihood that public law and reasonableness defences were likely to be increasingly relied on by tenants in housing disputes.
The decision of the Court of Appeal in Barber v Croydon LBC case on 11 February 2010 confirms this trend. Although it involved a local housing authority it is likely to be relied on in future cases involving Registered Providers as well.
In Barber the tenant (B) appealed against an immediate order for succession of a flat let to him by the local authority on the basis of an incident in which he had threatened, spat at and kicked a caretaker. B suffered from learning difficulties and a personality disorder.
The local authority’s policy on anti-social behaviour recognised the need for its ASB team to work in partnership with other internal and external statutory and voluntary agencies, including the social services department and the Integrated Mental Health Service. The policy also set out 3 categories of anti-social behaviour and the local authority concluded that B’s conduct fell within the most serious category (category 3) in respect of which legal action would almost always take place.
At the possession hearing the local authority relied on evidence from its ASB team manager (H) that despite the isolated nature of the incident it remained proportionate to seek a possession order. B argued that H had pressed ahead in breach of the local authority’s own policy without consulting the Integrated Mental Health Service or considering whether anything less than possession would solve the problem and that the local authority’s decision to seek possession of the flat was one which no reasonable person would consider justifiable.
In allowing B’s appeal the Court of Appeal held that H’s decision was one which no housing authority, faced with the facts of the case, could reasonably have taken. Although the assault on the caretaker was serious and 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.
Although there might be cases where the risk of future anti-social behaviour by such a tenant was unlikely to be countered by anything less than their removal, the requirement to consult the specialist agencies was likely to ensure that the recovery of possession was confined to cases where it was actually necessary to prevent a repetition of such behaviour.
In essence, this was a case in which the wording of the local authority’s own policy was successfully used against it to appeal a possession order.
Whilst that might sound alarming it does not have to provided that social providers understand what their policies say and apply them reasonably and consistently.