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Housing Services ANTI-SOCIAL BEHAVIOUR PROCEDURE PROCEDURE SUMMARY Reviewed March 2007 1 ANTI-SOCIAL BEHAVIOUR PROCEDURE A SUMMARY Introduction This document is a summary of the Council’s Anti-social Behaviour Procedure. The Procedure is intended as a guide for Housing Services staff and sets out: the Council’s definition of anti-social behaviour (ASB) the legislation available to Housing Services for tackling ASB how staff should deal with initial complaints of ASB when to pursue legal remedies for ASB and an explanation of these suggested remedies for ASB on a problem by problem basis Definition The Council has adopted the following definition of ASB, taken from the Anti-social Behaviour Act 2003: “Conduct which is capable of causing nuisance or annoyance to anyone who has the right to live in accommodation owned by the Council, those living in neighbouring properties, whether they be owner-occupiers or tenants of other landlords, or those who work in the locality or use local facilities, or which directly or indirectly relates to or affects the housing management functions of the Council.” It should be noted that ASB has been held by the Courts not to be normal, reasonable behaviour such as day to day living noise which may cause disturbance to neighbours because of a particular sensitivity or because of poor sound insulation. In respect of racial harassment, the Council has also adopted the definition recommended by the Stephen Lawrence Inquiry: “A racist incident is any incident which is perceived to be racist by the victim or by any other person” Legislation The law as it affects ASB is constantly evolving and Housing Services staff receive training to keep up to date with any changes. Legislation dealing with ASB includes: Housing Acts 1985 and 1996 – these Acts set out the Grounds for Possession for Council tenants. Breach of these Grounds could lead to a tenant being evicted. The 1996 Act also provides for Councils to adopt Introductory Tenancies. Crime and Disorder Act 1998 – this Act introduced Anti-social Behaviour Orders (ASBOs) which the Council can obtain against perpetrators of ASB. Anti-social Behaviour Act 2003 – this Act widened the powers to obtain ASB injunctions by including behaviour “capable” of causing nuisance. It also introduced Demoted Tenancies. 2 ASB – the early stages Housing Services has legal responsibilities as a landlord and must follow Council Policy (see the separate document Statement of Policy on Anti-social Behaviour which is also available in summary form). Staff will enforce the Conditions of Tenancy by acting to solve a complaint where ASB is reported, and all complaints will be treated seriously and investigated thoroughly. This Section deals with the preliminary reporting of ASB and covers the following areas: Mediation – complainants are advised to aim for conciliation rather than confrontation in the early stages of a dispute. To this end the Council uses the services of East Surrey Community Mediation, an independent body which offers free mediation to Council tenants. Diary and Record Keeping – it is important that both staff and complainants keep records of the nuisance both to assess progress and to use as evidence should the nuisance escalate. Complainants are given diary sheets to complete and staff complete an Initial Report and log the complaint on a spreadsheet. There is a separate reporting procedure for complaints of racial harassment, and a corporate as well as departmental register. Receiving complaints – a complaint can be made verbally or in writing by the victim themselves or on their behalf by a Councillor, MP, Citizens’ Advice Bureau, Social Services, police or other agency. It is not necessary for a complaint to be in writing before taking action. Anonymous complaints will be dealt with if they can be substantiated by other means, eg witnessed by the Management Officer. Interviews – staff are given guidance on how to conduct the interview with the complainant and, if agreed, with the alleged perpetrator. There are separate guidance notes for incidents of racial harassment. Action plan – the interview will end with an agreed action plan. This may include diary keeping, referrals to other agencies or interviewing the alleged perpetrator Interviewing the perpetrator – such an interview will normally produce one of three results: denial, counter claims or acceptance. The procedure sets out how the Management Officer should deal with each of these depending upon the individual circumstances and evidence available. Acceptable Behaviour Contracts – (ABCs) are informal agreements with no legal basis, nor are they legally enforceable. They are used primarily to curb ASB by youths. They set out specific examples of unacceptable behaviour and are signed by the youth, his/her parents, the Management Officer and the police. ABCs have been found to be very effective in dealing with low-level ASB and preventing its escalation to more serious incidents. ASB – Legal Action In considering whether to take legal action against the perpetrators of nuisance the Management Officer must undertake a range of Customer Safety Checks. There are some vulnerable tenants where legal action should only be considered as a last resort. The court will rightly be concerned about the tenant’s lack of culpability and the likely harm to the tenant that may be caused by eviction in the light of their illness. Those whom the council may consider vulnerable might include: 3 tenants with mental or physical disabilities elderly tenants families with young children tenants with substance misuse issues. Following the Customer Safety Checks, the Management Officer will assess the severity of the ASB and the evidence available and will decide, with reference to the Estates Manager and Legal Services as appropriate, on the next step. There are a number of legal remedies available to Housing Services including: Injunctions – these can be ASB injunctions as set out in the Anti-social Behaviour Act 2003 which may or may not carry a power or arrest if breached. Alternatively the Council can apply for a “common law” injunction in order to enforce the terms of the Conditions of Tenancy. In either case, the matter will be referred via Legal Services to the County Court and evidence will be needed in order to convince the judge to make the order. The evidence could take the form of photographs (for example of an untidy garden), or may require witnesses to be present or to swear affidavits. An injunction can be a stand-alone remedy, but may also be used in tandem with other proceedings, for example to stop ASB pending a possession hearing. Anti-social Behaviour Orders (ASBOs) – these are commonly thought of as being for use against youths, but in fact can be obtained against any person over 10 years old. The main condition is that the person in question has acted in an anti-social manner which was likely to cause harassment, alarm or distress to one or more persons not of the same household. Formal consultation with the police is required before an application for an ASBO can be made. An ASBO (in similar fashion to an ABC) will typically set out specific examples of unacceptable behaviour and will often specify areas that the perpetrator cannot go to, or curfews. Although the process for getting an ASBO is civil in nature and hearsay evidence is admissible, the burden of proof is the criminal criteria of “beyond reasonable doubt”. This is because breach of an ASBO is a criminal offence. Hearsay evidence should therefore be particularly strong, and it will always be preferable to have first-hand witness or police evidence for an ASBO application to succeed. Serving a Notice – a Notice is literally advice to the tenant that legal proceedings have commenced. A Notice of Seeking Possession is used against a secure tenant who has breached their Conditions of Tenancy; a Notice of Proceedings for Possession is for an Introductory tenant; a Notice of Proceedings for Demotion is for a secure tenant, but where the Council is seeking to demote the tenancy to insecure status for 12 month rather than seek possession. The Notice is the final warning to the tenant – if they continue to fail to abide by the Conditions of Tenancy after the Notice has been served, the Management Officer will refer the case, via Legal Services, to the County Court for a hearing. Court Hearing – with an Introductory tenancy the judge has no discretion but to award possession. With secure tenants, the judge may decide to award a suspended possession order rather than an outright which in effect gives the tenant a final chance. The judge also has discretion as to whether to demote a tenancy or not. The Council can apply for a demotion order at the same time as a possession order so that the judge has the option of awarding one or the other. 4 Before, during and after the legal process, the Council has a duty in respect of witness and complainant support. This support could range from merely keeping the complainant informed to awarding a management transfer. The Management Officer will assess each situation individually and if necessary carry out a risk assessment of the complainant’s home environment. Safety of the complainant or witness is paramount. The Council recognises that ASB can make tenants feel vulnerable and will work with other agencies to support and protect them such as: Social Services Police Community Support Officers East Surrey Domestic Violence Forum Victim Support. Whilst hearsay evidence and professional witnesses may be used, it is important for victims themselves to give evidence as this will be more detailed and will show first- hand the distress and annoyance the nuisance is causing. Complainants must be made aware from the outset that whilst hearsay evidence may be acceptable for lesser remedies such as injunctions, it is unlikely that ASBOs or possession or demotion orders will be obtained without direct evidence from the complainants. The final legal remedy detailed in the Procedure is Environmental Health Abatement Notices. The Environmental Protection Act 1990 gives powers to local authorities and private individuals to take action where problems are “prejudicial to health or a nuisance” and includes areas such as: smoke noise accumulation of rubbish In such cases the Management Officer will work closely with Environmental Health in order to obtain an Abatement Notice. Failure of the perpetrator to comply with the Notice can result in a fine or a prison sentence. ASB Complaints – problem by problem Part 4 of the Procedure deals with the main causes for complaint: Property – including unauthorised alterations, illegal use and vandalism Noise – including parties, music and rowdy behaviour Personal conflict – including graffiti and threatening behaviour Dogs Communal Areas – including rubbish and children congregating Cars Gardens This Section sets out who can deal with each type of complaint (eg Housing Services, Environmental Health, the police) and what they are able to do. 5 Conclusion The ASB Procedure is primarily a guide for staff and will be reviewed every three years unless there are legislative or policy changes in which case it will be reviewed sooner. If you wish to receive a copy of the full Procedure, please contact Maureen Farnell, Housing Services Manager on 01883 732806. Reviewed March 2007 6
"ANTI-SOCIAL BEHAVIOUR PROCEDURE"