The new absolute ground

House key iStock 000004543619XSmall 146x219Mari Roberts analyses the key elements of the new absolute ground for possession brought in under the Anti-Social Behaviour, Crime and Policing Act 2014.

Section 94 of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) came into force on 20 October 2014 and from that date there was a new absolute/mandatory ground for serious housing related anti-social behaviour (“ASB”), where the ASB has already been proved in another court.

The guidance states that the mandatory ground is intended for use only in the most serious cases and should be used selectively. Prevention by way of early intervention is meant to be at the heart of the landlord’s approach.

The New Ground

Section 94 of the Act inserts a new section 84A into the Housing Act 1985, which provides that the court will be required to grant possession if any one of five conditions is met and, where relevant, the review procedures have been followed. The new section 84A(1) expressly provides that this is subject to any available defence based upon the tenant’s Convention rights, within the meaning of the Human Rights Act 1998 (i.e. the defence of proportionality, often currently raised in the context of introductory tenancies and non-secure tenancies).

The new ground can be used in addition to or in the place of the existing grounds set out in Schedule 2 to the 1985 Act.

The five conditions in the new section 84A relate to ASB by the tenant, a member of the tenant’s household or a visitor to the property. Conditions 1, 2 or 3 will be met if the tenant, a member of the tenant’s household or a person visiting the property has been:

(a) convicted of a serious offence, which is one of the offences set out in the new Schedule 2A to the Housing Act 1985. “Serious offences” include the following:

  • violent (and sexual) offences, including certain offences under the Offences Against the Person Act 1861 such as wounding with intent to cause GBH and malicious wounding;
  • offences relating to offensive weapons (firearms and certain offences involving knives);
  • offences against property, including offences under the Theft Act 1968 such as robbery and burglary, and an offence under Section 1 of the Criminal Damage Act 1971 of destroying or damaging a property;
  • drug-related offences under the Misuse of Drugs Act 1971 (restriction of production and supply of controlled drugs and possession of controlled drugs with intent to supply, but not mere possession);

(b) found by a court to have breached a provision of an injunction granted under section 1 of the 2014 Act (these are injunctions which are similar to those which are currently granted under the Housing Act 1996 and which can have powers of arrest attached). The breach must be something other than a positive requirement to participate in an activity (e.g. attendance at an alcohol or drugs misuse course or a dog training course);

(c) convicted for breaching a Criminal Behaviour Order granted under section 22 of the 2014 Act (similar to ASBOs, which currently can be granted under a stand-alone application or when an individual is convicted).

The serious offence or breach(es) must have been committed:

(a) in the dwelling-house or in the locality of the dwelling-house;

(b) elsewhere against, or in breach of a provision designed to protect either:

  • a person with the right to live in the locality of the dwelling-house; or
  • the landlord or a person connected with the landlord’s housing management functions.

Condition 4 will be met if the tenant’s property has been closed under a Closure Order granted under section 76 of the 2014 Act as a result of ASB in or near the property and the total period of closure was for a period of more than 48 hours (continuous).

Condition 5 will be met if the tenant, a member of the tenant’s household or a person visiting the property has been convicted for breach of a notice or an order to abate noise served in relation to the tenant’s property pursuant to the provisions of the Environmental Protection Act 1990.

Notice requirements

The 2014 Act inserts a new section 83ZA into the 1985 Act, which sets out the notice requirements in relation to proceedings for possession on the new absolute ground or on the new ground in addition to the discretionary grounds. The notice must:

  • state that the court will be asked to make an order under section 84A;
  • set out which of the five conditions is being relied upon;
  • set out the reasons for the council’s decision to apply for the order;
  • inform the tenant of their right under section 85ZA to request a review of the council’s decision and of the time within which the request for a review must be made.

If the notice is also relying on one or more of the discretionary grounds in Schedule 2 to the 1985 Act, the usual provisions in relation to those grounds must be included in the Notice.

The notice, if relying on conditions 1, 2, 3 or 5, must also give details of the relevant conviction/breach on which the landlord proposes to rely, and the notice must be served on the tenant within 12 months beginning with the date of the conviction/when the court made the finding. If there is an appeal, the 12-month period runs from the day on which the appeal is finally determined or abandoned. A notice served pursuant to a Closure Order must be served within a three-month period. 

The notice must inform the tenant that if they need help or advice about the notice and what to do about it, they should take it immediately to a CAB, housing aid centre, a law centre or a solicitor. 

The notice must specify the date after which proceedings for possession may be begun and ceases to be in force 12 months after the date so specified (as per NOSPs currently served by the council). 

There is no power to dispense with service of a notice under the mandatory ground.

The Right to a Review

A new paragraph 85ZA is inserted in the Housing Act 1985 to deal with reviews of decisions to seek possession on absolute grounds. This is similar to the current provisions which apply to introductory tenancies. A tenant must make such a request in writing within seven days of service of the notice under section 83ZA. On receiving a request, the landlord must review its decision and must notify the tenant in writing of the decision on the review. If the original decision is confirmed, the tenant must be notified in writing of the reasons for the decision. The review has to be carried out before the day specified in the section 83ZA notice as the day after which possession proceedings may be begun. 

The review procedure is governed by the Absolute Ground for Possession for Anti-social Behaviour (Review Procedure (England) Regulations 2014.

The application for a review must include the following:

  • the applicant’s name and address;
  • a description of the original decision including the date of the decision;
  • a statement of the grounds on which the review is sought;
  • a statement of whether or not the applicant requires the review to be conducted by way of oral hearing;
  • a statement as to whether or not the applicant agrees to receive communications relating to the review by e-mail. 

If the tenant requests an oral hearing, then a date must be fixed for that no earlier than five days after the day on which notice of the review hearing is given to the tenant (the regulations make provision as to the deemed date of service of communications in respect of the review, depending on how they are served). The tenant can request a postponement at any time before the date fixed for the review hearing, and the Council may postpone the hearing to a later date. 

The hearing must be conducted by an individual appointed by the council for that purpose, and if it is a council officer, he or she must be a person of greater seniority than the individual who made the original decision and must not be a person who was involved in the making of that decision. At the hearing, the tenant is allowed to make oral or written representations relevant to the decision which is being reviewed and may be accompanied or represented by another person. The tenant is also allowed to call persons to give evidence and can put questions to any person who gives evidence at the hearing. 

If the tenant fails to attend the review hearing, the person conducting the hearing may proceed or give directions with a view to the further conduct of the review. There is also provision for the review hearing to be adjourned. 
If the tenant does not request an oral hearing, then the council must send a written notice to the tenant giving them a specified time in which to make any written representations. That time period must be no earlier than five days after the day on which the letter is sent to the tenant. Any representations must be considered by the person conducting the review. Again, the individual who conducts this review if they are an officer of the council must be of greater seniority than the individual who made the original decision and must not have been involved in the making of the original decision.

If the decision is upheld on review, the council can proceed in the usual way and issue a claim for possession.

Mari Roberts is Senior Solicitor in the litigation and dispute resolution team at Sharpe Pritchard. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..