As we all get to grips with new ways of working during these unprecedented times, the housing sector must also adapt to continue to support communities and limit anti-social behaviour. Following the Government’s announcement on 23 March 2020 of a UK wide lockdown practitioners will have noticed an increase in anti-social behaviour.
Whilst reports of criminal incidents have fallen sharply, there has been a significant increase in reports of ASB. The National Police Chief Council has reported an increase in reports of ASB of 59% from the same period last year. Breaches of the Government guidelines in respect of social distancing have also been widely reported.
Alongside this and the general challenges of remote working and the inability to visit customers and potential witnesses, practitioners have had to adapt to deal with an evolving programme of changes introduced by legislation (with the Coronavirus Act 2020), amendments to the Civil Procedure Rules and a series of practical and operational responses implemented by HM Courts and Tribunals service as courts and tribunals continue to function but in a way that respects Government guidance.
In this article, we focus on two illustrative case studies to share our recent experience of dealing with ASB injunction applications, emergency without notice applications and breaches of powers of arrest during the current crisis. The examples provided, highlight work we have recently undertaken to tackle ASB with Sanctuary Housing Association.
Case Study One
The first injunction we applied for post-lockdown related to a visitor to a Sanctuary customer. Despite the lockdown, the defendant continued to attend a Sanctuary-owned block of supported housing accommodation. The defendant continued to attempt to make contact with his partner, who was the sole licensee of her flat.
On numerous occasions, the defendant was reported to have visited the flat in clear breach of social distancing guidance, and to have committed significant noise nuisance which included shouting, arguing, banging and threats of violence to other residents. The defendant was of no fixed abode and was known to sleep in his car as he was homeless, having refused to accept temporary hostel accommodation offered by the local authority.
Case Study Two
In the second case, the defendant was a Sanctuary tenant with a long history of anti-social behaviour since the start of her tenancy. The tenant had caused noise nuisance at all hours including shouting, singing, and playing music loudly - sometimes in the company of others, despite being in lockdown. The property was located in a block of flats and the noise caused considerable nuisance to other residents. Sanctuary was particularly alive to the fact that one of the residents who was particularly affected by the ASB was a key worker (a nurse).
In both cases, we were instructed by Sanctuary to obtain appropriate injunctions against the defendants. Without notice injunctions were sought in both cases.
In each case, the applications were issued electronically in the defendant’s local County Court. On a practical level, early and frequent communication with the Court to discuss judicial availability for the forthcoming hearing proved vital as this ensured the matters were processed quickly and dealt with as smoothly as possible. This is particularly important bearing in mind that the County Courts – who were under a lot of strain in terms of resource levels and work volumes - even before the pandemic, and so they face even greater challenges now with far fewer administrative staff working, and fewer Judges sitting (although of course the blanket stay of all CPR Part 55 possession applications will help to ease that burden going forward).
Crucially, given the circumstances, the injunction papers were drafted swiftly and we were greatly helped by Sanctuary having well maintained and up-to-date tenancy files, which they were able to access despite working remotely. The applications were issued using clearly marked and paginated e-bundles which were easily and quickly put together with using specialist PDF software.
Following the applications being issued, the Court arranged telephone hearings to enable the without notice applications to be heard by a Judge. Helpfully, the Court took control of this process, and arranged for calls to be placed with the necessary parties and the Judge. Given that only a month ago this would have been far from regular practice, it is impressive how quickly HMCTS has responded to the current challenges by rolling out the necessary software and training to facilitate remote hearings. It was a very welcome relief that the Courts have adapted so quickly – necessity truly is the mother of invention!
Judicial approach and Orders
Whilst the relevant tests and thresholds set out in the Anti-social Behaviour, Crime and Policing Act 2014 obviously had to be satisfied, our experience was the District Judges we appeared before, were very sympathetic towards social landlords and their attempts to deal with anti-social behaviour during the Covid-19 crisis - especially when Government guidance was being breached. The orders we obtained included powers of arrest, and exclusion orders were granted at the without notice hearing. The accepted position is that the latter should only be granted in exceptional circumstances; though these are of course exceptional times.
It is worth noting that in Case Study Two, the Court treated the resident who was a key worker as a vulnerable resident at the time the application was made, and a considerable degree of weight was attributed to this when the Judge decided to grant our order (in our view, quite rightly!).
In response to our submissions, in Case Study Two we obtained a clause in the injunction order that directly prevented the defendant from having any visitors to her property or the communal block in breach of Government social distancing guidance. The Judge allowed us to attach a power of arrest to this provision in the order, which demonstrated how seriously the Courts are treating breaches of social distancing during the pandemic. It should also be noted that, at the time of writing, HMCTS are treating ASB Injunctions as priority 1 matters (i.e. matters which must be dealt with by the County Courts) and it is helpful for us practitioners that these applications are being given the highest possible priority.
Ordinarily, an injunction must be personally served on the defendant before it becomes effective at law. However, personal service of injunction orders is currently incredibly difficult to achieve whilst Government guidance is observed and so there is a clear requirement for the Courts to take a pragmatic and proportionate approach to varying the normal service requirements. In our cases, the Judges did precisely that – at the earliest opportunity, we applied for and were granted orders permitting us to use alternatives methods of service of the injunction orders and powers of arrest (with Covid-19 being recorded as the justifying factor in the body of the order). The sealed orders were emailed to us by the Court to allow us to serve, removing the need for a process server to attend to collect them from the Court.
Powers of arrest and committals
In Case Study Two, once the injunction order was served on the defendant and the Police, it was breached. This triggered the power of arrest and the defendant was duly arrested. As the local court was closed for live hearings, the County Court requested that the defendant was taken to the Regional Centre, where she would then be produced before a Judge. Whilst this may sound simple, in reality, the amount of co-ordination that needs to be done for this to happen on time means that it is all too easy for the process to let practitioners down for some purely administrative reason or other.
In view of the urgency with which a defendant must be produced to the court following detention under a power of arrest, and the current restrictions on court availability, early contact with the Court Listing Manager was essential. The Regional Centre was informed of the forthcoming arrest which enabled us to forward plan and co-ordinate the process to get a hearing scheduled prior to the Defendant being arrested.
Despite that, and frustratingly but perhaps not surprisingly, the local Police refused to take the defendant into custody as they were only willing to hold the most serious offenders as a result of the Covid-19 risks. The defendant was therefore released without being brought before a Judge. Depending on the nature and circumstances of any further breach, it will be interesting to see whether any future committal action will be more successful whilst the courts and Police stations are operating under their current crisis response arrangements. At present, therefore, practitioners and landlords considering committal action will need to make a pragmatic and realistic assessment of whether such action will be likely to bear fruit.
Return hearings and on notice applications
In both our Case Studies, the Courts requested that we, as Sanctuary’s solicitors, made the necessary arrangements to set up the telephone hearing for the return date hearing. This exercise is made much easier where a landlord has up to date contact details for its customers, as the Courts are understandably keen to see that the claimant makes sufficient attempts to put the defendant on notice of the return hearing (and what they have done to give the defendant a proper opportunity to obtain legal representation).
The landlord’s view
As a housing association with over 69,000 homes across England, Sanctuary Housing Association is one of the UK’s leading social landlords. Sanctuary has its fair share of ASB cases. Like its peers, it is in uncharted waters in terms of having to deal with ASB during a global pandemic, the like of which we have never seen before.
Lisa Brooks, Assistant Legal Services Manager (Housing Litigation) at Sanctuary says:
“Sanctuary is acutely aware that as the current climate continues, its residents are faced with uncertainty, stress and individual challenges. It therefore remains more important than ever that our residents feel safe and secure at home and are able to look after themselves, their families and their neighbourhoods. As such, unacceptable and anti-social behaviour cannot be tolerated and Sanctuary will endeavour to use all tools available to it to curtail and manage such unwelcome conduct.”
Tips for practitioners
The judiciary and the supporting cast of County Court staff are to be applauded for the way in which they have adapted so quickly to the Covid-19 challenges and embraced new technology to ensure that justice can still be dispensed. It is also helpful that ASB Injunctions are being treated as priority cases for the Courts to administer, and early indications are that Judges appreciate that they have a role to play in enabling social landlords to tackle ASB and enforce compliance with Government guidance on managing Covid-19.
Housing professionals have their part to play in ensuring the effective management of ASB during this period. From our experience to date, we have the following tips to share:
- Utilise all resources within organisations to ensure that papers can be provided to the Court which are user friendly and easy for a Judge to deal with remotely. At least initially, Judges will be operating outside their comfort zone so the more support we give them, the better;
- Maintain good communication with Court staff and work with them, not against them. They are under pressure but will generally want to help and be as supportive as they are able
- Whilst the Courts are sympathetic to social landlords where there are breaches of Government guidance during Covid-19, the evidential thresholds prescribed by statute remain. The need for good evidence remains absolutely key
- Protection of key workers is paramount. Evidence as to how ASB is affecting such individuals tis likely to be persuasive to support the injunction application;
- Up to date record keeping and contact details is valuable. Landlords should ensure records on tenants are kept up-to-date so that all available methods of contact can be used to the ease the process of service of injunctions and giving notice of hearings, and
- Monitor, maintain and develop safer working arrangements with agencies like the Police, who play a pivotal role when a landlord tackles ASB. Good buy in and a willingness to help from third parties can go a long way when a case needs to be dealt with urgently. Help them to help you.
For further support relating to the impact of COVID-19, please view our COVID-19 Advisory Service page.
Article issued within Resolve Bulletin, replicated with consent