Absolute ground for eviction: victory for landlords or damp squib?

The snappily-named Anti-Social Behaviour, Crime and Policing Act 2014 (‘ASBCPA’) introduced a number of provisions to strengthen the anti-social behaviour armoury. One such provision is the ‘absolute’ or ‘mandatory’ ground for repossession of a property where there has been a previous court finding of anti-social behaviour by a tenant or their household/visitors.

It provides that the court must make a possession order if one of the conditions is met, and cannot suspend the order on terms.

It applies to secure tenants (s.84A of the Housing Act 1985) and assured tenants (Ground 7A of Schedule 2 of the Housing Act 1988), which of course encompasses fixed-term ASTs.

The conditions are that the tenant, a member of the household or a person visiting the property has been:

convicted of a serious offence (condition 1 – a broad spectrum including violent or sexual offences, offensive weapons, drugs and damage to property),
found to have breached a civil injunction made under the ASBCPA (condition 2), or
convicted of breaching a criminal behaviour order or noise abatement notice/order (conditions 3 and 5).
The conviction or breach must have occurred within the locality of the property.

Ground 4 relates to closure orders, which will not be covered in this article.

The landlord must serve a ‘notice of proceedings’ within 12 months of the conviction/finding of breach.  For secure tenants there are prescribed requirements of the notice (set out at s.83ZA of the Housing Act 1985) but none have yet been published for assured tenants (s.8(3A)-(4E) of the Housing Act 1988).  A local authority landlord (only) must provide for a right of review of the decision.

On the face of the statute, the clear benefit to landlords is that the court does not have to be satisfied that it is reasonable to evict, and cannot scrutinise the landlord’s reasons.  So long as the correct procedure has been followed, an outright order must be made.  That is the case for private sector landlords.

However, that is not the end of the story for landlords that are public bodies.  Section 84A(1) of the Housing Act 1985 provides that possession will be granted “subject to any available defence based on the tenant’s Convention rights, within the meaning of the Human Rights Act 1998”.

This writer’s experience of the absolute ground being used by public bodies is that judges are quick to raise human rights issues, perhaps because the court has no other discretion.  If this continues to be the case, then what at first appeared to be an effective tool in tackling anti-social behaviour may result in protracted litigation, thereby defeating its statutory object.

It remains to be seen how s.84A is considered alongside the current case-law on article 8 defences (Pinnock etc.) as there appear to be a number of contradictions.

The first relates to who must raise the argument, and how it should be done.  In Southend-on-Sea v. Armour [2014] EWCA Civ 231 the Court of Appeal stated that “an article 8 defence on the grounds of lack of proportionality must be pleaded and sufficiently particularised to show that it reaches the high threshold of being seriously arguable”.

Will it therefore be sufficient for the judge to raise the issue? What if the tenant doesn’t attend?  It is difficult to see how tenants could be expected to plead such a case given the scarcity of legal aid to assist them.

The second relates to scrutiny of the landlord’s decision.  In Manchester CC v. Pinnock [2010] UKSC 45 the Supreme Court stated that a tenant’s personal circumstances can be taken into account when considering proportionality.  At [64] Lord Neuberger stated that “proportionality is more likely to be a relevant issue in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty”.  However he continued to say that the court “may require the local authority to explain why they are not securing alternative accommodation in such cases”.

If local authority landlords will be required to evidence their rationale in deciding to evict, taking into account the circumstances of the tenant (and, no doubt, their household) then in reality the benefit of the absolute ground is lost.

Pleading s.84A might even backfire completely.  If a judge is not satisfied that an outright possession order is proportionate, he/she must refuse the application since no suspended order can be made under s.84A.  This would mirror the difficulties which already exist in introductory tenancy cases, where similar provisions apply.  A local authority might therefore be advised to plead the non-absolute anti-social behaviour ground alongside s.84A, so as to hedge their bets.  Having done so, the point of s.84A is surely lost.

Assuming that the courts apply the Pinnock case-law to s.84A applications (which, surely, they must), the absolute ground may in reality have little practical use for public sector landlords.