Mandatory ground for possession will only make delays worse: Law Society

The Government’s plan to introduce an absolute power of possession for anti-social behaviour will only serve to exacerbate delays in housing cases, the Law Society has warned.

A submission prepared by members of Chancery Lane’s housing law committee agreed that current court timescales for securing possession orders did not reflect the gravity of offences or the distress caused to victims.

But it warned that the Government’s flagship proposal for an absolute ground for possession would be “excessive and unnecessary”.

The Law Society also argued that, as a matter of principle, judicial discretion was essential to ensuring that possession orders were made justly and effectively.

“The removal of judicial discretion and the protection of due process in any circumstances has to be justified, and we believe that the justification has not been made out,” it said.

The submission pointed to how the draft Anti-Social Behaviour Bill stated that landlords would have an unqualified right to possession subject only to the courts considering the proportionality of the decision ’where they are required to do so’, in keeping with the Pinnock principle.

The Law Society said: “According to the Supreme Court in the Pinnock case, any person who risks losing their home in possession proceedings has a right to raise Article 8 and have the matter determined by an independent tribunal.

“This will in effect render the absolute power of possession route redundant, as proportionality arguments will be raised in nearly all cases. These challenges will be costly and will exacerbate existing delays.”

Chancery Lane acknowledged that delays were a major source of concern, with evictions cases currently taking around seven months from application to completion.

But it argued that the absolute power of possession for anti-social behaviour was not an appropriate response to the appearance of unrepresented defendants at court or the fact that more evidence was required.

“Nor should they be used to compensate for the lack of time available within a hard-pressed court system,” it said, calling for the creation of “a modern court system properly staffed and with appropriate technological support”.

Chancery Lane also pointed out that – “without losing sight of the impact of serious anti-social behaviour on victims” – perpetrators often presented a complex combination of problems to which eviction was not necessarily the answer.

“Although possession proceedings are in some cases unavoidable, taking possession of a home has serious implications not only for the individuals concerned and their families but also for local authorities,” it said.

“While possession of a residential property must be preserved as a last resort, it is essential that in these cases judicial discretion is retained.”

The submission meanwhile criticised the wording in the draft Bill on without notice injunctions, pointing out that the legislation did not state what the legal test for seeking such an injunction was.

“This will be problematic,” the Law Society said. “The case of Moat Housing v Harris & Hartless demonstrates the issues associated with seeking an injunction on a without notice basis. A clear test should be included in legislation.”

The committee suggested that a good basis for this test would be the current test used for non housing related anti-social behaviour injunctions. This test sets out that a without notice injunction “may be applied where:

• It is both necessary and proportionate to the harm that is sought to be avoided; and
• that the complainants would be deterred from giving evidence if notice is given due to the significant risk of threats of violence or harm.”

In other criticisms, the Law Society said the wording of the proposed power was ambiguous and likely to cause confusion, negatively impacting on timescales.

It also claimed that the draft wording stating that the absolute ground for possession would apply to offences committed by tenants, members of their household or regular visitors which take place in the locality of the property or between neighbours away from it, “presents multiple problems.”

The submission argued by way of example, that the eviction of a family was not a proportionate response to an offence committed by the friend of a teenage child who is visiting the property.

On the issue of riot related offences, the draft Bill would extend the scope of the discretionary ground for possession. This means that landlords would have powers to evict a tenant where they, or a member of their household, were engaged in riot related offences anywhere in the UK.

However, the Law Society said it supported the use of possession orders to deal with riot related offences only where there was such a link between the offence and a tenancy that would justify eviction as an appropriate sanction.

“Anti-social behaviour offences can be linked to possession of property through the requirement that the offence has occurred ‘in the locality’,” it said. “The same requirement should be applied to riot related offences, if this provision is removed, it may be difficult for the courts to see the link between a riot related offence and the punishment of eviction.”

The Law Society’s submission can be viewed here.

Philip Hoult