Essay: Legal framework for UK housing / tenant/landlord relationships / ASB (Wales compared to Scotland)

PURPOSE OF BRIEFING PAPER:-
To support a session for delegates on how law impacts housing practice:
1. Legal framework for UK housing, predominantly Wales; how housing decisions are challenged in court through equalities/human rights.
2. Key legislation of tenant/landlord relationship in Wales, identifying differences to Scotland.
3. Anti-Social Behaviour (ASB) housing laws in Wales compared to Scotland.
LEGAL FRAMEWORK
UK Parliament has Parliamentary sovereignty, i.e. power to create/end laws, and is regarded as the supreme legal authority. Parliamentary laws can only be changed/reversed by future Parliaments. However, Parliament has voluntarily passed laws that have limited the application of Parliamentary sovereignty, e.g. UK Law must be interpreted in-line with European Law after entry into the European Union, and law-making powers passed to devolved National assemblies. (Parliament UK,2019)
Government of Wales Act 2006 enabled National Assembly of Wales (NAW) to create Housing laws, or Acts. Acts commence as a bill/draft law, progressed via consultations before an Assembly vote. If passed, Royal Assent is required to create an Act. (NAW,2018)
UK has three legal jurisdictions, England and Wales, Scotland and Northern Ireland. Offences are criminal or civil. Criminal law upholds order, protects individuals/property and preserves the peace. Offences are subjected to criminal prosecution (Inbrief, 2019). Unlawful evictions, harassment, sub-letting social homes are criminalised housing offences. In Wales, the Crown Prosecution Service are the prosecuting authority and cases must be proven ‘beyond reasonable doubt’. (CPS, 2017)
Civil law protects rights of organisations/individuals not usually protected via criminal law. It incorporates contract law and torts. In housing, contract law refers to legally-binding tenancy agreements, usually incorporating expressed terms (recorded contract agreed by both parties) or implied terms (assumed to be included), challenges in court emerge from breach of terms. A tort is a civil wrong, entitling an aggrieved to seek a personal claim for damages or court action for an injunction etc. Civil Law cases must be proven ‘on the balance of probabilities’ which is a lower burden of proof. (CIH,2019).
Principal sources of law:-
• Acts of Parliament(statute or legislation)-written legislation created by UK Parliament or devolved Parliaments where powers have been transferred.
• Common Law(case/precedent law)-based on judicial precedents established by courts over time, binding and a reference to similar cases in the same/lower courts.
• EU Law-directives and regulations implemented into UK law
Housing-related cases in Wales share the same courts for civil and criminal proceedings.
Hierarchy:-
Civil-
• County Courts-majority of civil housing cases (repossession, rent arrears) are dealt with.
• High Court-Deals with civil cases/appeals of decisions of lower courts.
• Court of Appeal(civil division)-Hears appeals of decisions made at County/High courts. Permission necessary for appeal.
• Supreme Court-Final appeal court for civil/criminal cases. Appeals only heard where there is an arguable point of law of general public importance.
Criminal-
• Magistrates Court-deals with low-level criminal matters. Fines can be imposed upto £5,000 and prison sentences upto six months. Defendants referred to Crown Court if greater sentences required
• Crown Court-deals with serious ‘indictable’ offences
• Court of Appeal(criminal division)-Hears appeals of sentences/convictions made by Crown court.
• Supreme Court
(Shelter,2019, CIH,2019)
CHALLENGING DECISIONS
Housing-related decisions can be challenged in several ways within Wales.
Judicial Review (JR)-legal process whereby a judge reviews the lawfulness of a decision/action, i.e. whether correct procedures and law were applied. JR’s usually take place in relation to allocations, homelessness etc.
Grounds for challenges:-
Illegality-decisions based on incorrect interpretation of law
Irrational-decision so perverse, no reasonable person could have made it.
Procedural impropriety-referred to as ‘legitimate expectation’ -a housing-provider made promises indicating how it will act in given circumstances. There is then a ‘legitimate expectation’ it will be followed. (CIH,2019)
JR’s conclude with Mandatory order (landlord required to carry out some act), Prohibiting order (prevents them carrying out an act) or
Quashed (cancelled) (CIH,2019). JR’s must be brought promptly after exhausting other remedies. They can be expensive and time-consuming. (Public Law Project,2019)
Ombudsman-Once internal housing complaints procedures are exhausted issues can be raised with Public Services Ombudsman, which reviews complaints in terms of homelessness, repairs, allocations, and decides if decisions are fair/actions are lawful. (Public Services Ombudsman,2019)
Equalities Act (EA) 2010 and Human Rights (HR) Legislation-enables individuals to challenge a housing decision in court if there is belief of discrimination in relation to age, sex, race, religion, disability, gender reassignment, marriage, pregnancy or sexual orientation. Challenges predominately made under sections 149, 15 and 35. S149 places a public sector equality duty on housing organisations to ensure policies/decisions eliminate discrimination, harassment and victimisation, advance equality opportunity and foster good relations between people with/without protected characteristics (EHRC,2016).S15 states disabled persons shouldn’t be treated unfavourably as a consequence of their disability. S35 states an occupier of a premises with a protected characteristic must not be discriminated against by eviction/taking steps to secure eviction.(CIH,2019)
Court cases where discrimination is established via challenges under the EA, burden of proof falls to the landlord to show they were unaware of the disability or the treatment met a proportionate means of achieving legitimate aim. (Sykes,2016)
Human Rights Act (HRA)1998 makes it unlawful for housing organisations to act in a way deemed incompatible with the European Convention on Human Rights, unless it could not have acted another way due to primary UK legislation (Liberty,2019). Housing defences are predominately brought in relation to breaches of Article 6-Right to a Fair Trial, Article 8-Right to Respect for Homes and Article 14-Right not to be discriminated against.
Article 6 defences occur on failed appeals of internal review decisions, prevalent in homelessness and allocation decisions. Runa Begum v Tower Hamlets LBC [2003] council decided the applicant was unintentionally homeless after refusal of accommodation offers. The decision was upheld in an internal review so an appeal under Article 6 was lodged at court that there wasn’t a fair and impartial hearing. The court upheld the original decision. (Johnson,2017).
Article 8 defences are used to challenge housing possession actions. Social landlords seeking possession on mandatory grounds (serious rent arrears/ASB) must ensure actions are proportionate and achieve a legitimate aim. Southend-on-Sea BC v. Armour [2014], possession proceedings were brought against a tenant for ASB. The court decided it was disproportionate to grant a possession order when it came to trial as a year had elapsed without complaint. (McDermott,2014)
Article 14 defences are used in relation to housing welfare reforms. R (Rutherford and another) v Secretary of State for Work and Pensions [2016], a disabled child lived with the claimant. They required an extra room for overnight carers. Housing benefit was reduced as the bedrooms exceeded the number required. The claimant felt discriminated against as housing benefit only allows additional rooms for disabled adults. The Supreme Court ruled in the claimant’s favour. (CRIN,2016)
TENANT/LANDLORD LEGISLATION
Legislation governing tenant-landlord relationships in terms of rights/responsibilities depends on the type, security of tenure and country.
Tenants and landlords enter into occupancy agreements- tenancy (gives exclusive possession) or licence (shared with others e.g. lodgers, hotel room occupier). Licence gives fewer legal rights, e.g. no rent control, no security of tenure. Security of tenure variations is seen as a balancing act between protecting a landlord’s interests and tenant’s right to quiet enjoyment. This is an implied term of any tenancy, meaning the landlord must not interfere with the tenant’s enjoyment of the property.(Levi-Solicitors,2017)
TYPES OF TENURE
Tenures in Wales and England are similar and currently include: –
Secure-Principle tenancy granted by LA’s/public sector bodies. Legislation derives from Housing Act (HA) 1985; property is regarded as separate dwelling and is secure when conditions of sections 80/81 fulfilled by tenant and landlord. Tenancies only ended via demotion/court order for possession.
Introductory-HA 1996 enabled LA’s to offer tenancies for twelve months; 6-month extension can be added via HA 2004 if doubts continue about tenant’s conduct. Court order for possession is required but no grounds must be proven.
Assured-Principle tenancy for Registered Social Landlords/private rented sector. HA 1988 legislates that the property is a separate dwelling. Tenancy only ended via demotion/court order for possession.
Assured Shorthold-HA 1988 legislated this type of tenancy can be granted on a fixed-term for 6-12months prior to becoming assured. Tenancy can be terminated after four months by giving 2 months’ notice. No grounds have to be proven for possession.
(CIH,2019)(LawWales,2016)
Existing types of tenancies/legislation are complex and cause confusion for landlords and tenants in Wales; The Renting Homes (RH) (Wales) Act 2016 aims to simplify laws for private and social renting, providing one clear legal framework. This Act is impending due to continuing processes of consultation as various pieces of secondary legislation are passed (LawWales,2016). The Act will introduce two types of tenancies, known as occupation contracts: –
1)Secure contract(modelled on Local Authorities’ secure tenancy)-Periodic
2)Standard contract(modelled on private rented sector shorthold tenancy)- Periodic or Fix Term
Occupation contracts will outline rights and responsibilities of landlords and tenants(Welsh Government,2017).
Comparatively, Scotland reduced and simplified its’ tenancies prior to Wales, HA (Scotland) 2001 converted secure tenancies, predominantly LA’s/RSL housing into Scottish Secure Tenancies (SST). Differentially to secure contracts, SST’s can be granted on an introductory basis for at least six months, known as Short Scottish Secure Tenancy (SSST), for prospective tenants/family members subject to an ASBO (Anti-social behaviour order) or in temporary letting (homeless accommodation).
The equivalent of the Standard contract is the Private Residential Tenancy (PRT), introduced via Private Housing (Tenancies) Scotland Act 2016. Fix-term standard contracts apply but private tenants in Scotland can stay as long as they want or until the landlord seeks possession.(CIH,2019)
RH (Wales) 2016 Act will allow joint contracts between two or more persons. All parties have equal rights over possession and are equally liable for tenancy requirements and breaches. In Scotland there is no limit on number of persons forming a joint tenancy under HA 2001, all have equal rights and liability, similar to Wales. Currently in Wales, if a joint tenant chooses to end their tenancy, the entire tenancy is terminated. RH (Wales) Act 2016 will change this for secure and standard contracts, allowing tenancy to continue for remaining tenants, thus reducing risk of homelessness. A similar basis is employed in Scottish social housing, whereby joint tenancies can be ended for one tenant by serving written notice on both landlord and other tenants. Differentially, one person ending a joint tenancy in private rental in Scotland, terminates it for everyone. (CIH,2019)
Various legislation in Wales and Scotland cover tenants’ rights in terms of assignment, repairs, and home-improvements. Further rights are-
Succession-RH (Wales) Act 2016, sections 73-79 will provide priority succession for spouse/civil partner of contract-holder on death. The provision of a reserve successor has also been incorporated and can include a family member or carer that lived with the contract holder for 12 months prior to death. There can be two successions to a priority successor and only one to a reserve successor. The Housing (Scotland) Act 2001 also allows two successions of secure tenancies for predetermined ‘qualified persons’ and similarly carers can succeed if they have given up their home. No succession is allowed for SSST. (CIH,2019)
RTB /Acquire-abolished in Wales and Scotland after devolution.
Sub-let/lodger-RH (Wales) Act 2016 and HA (Scotland) 2001 enables tenants to sub-let/take in lodgers with landlord consent. (CIH,2019)
Terminating tenancy in Wales is currently the same as England. The impending RH (Wales) Act 2016 enables occupation contracts to be terminated without a court order if the contract holder gives the landlord the required notice to terminate, mutually agrees the contract should end, abandonment or breach of contract by the landlord. Scotland terminations without a court order consist of tenant giving notice and mutual agreement.
Welsh/Scottish landlords in reclaiming possession via court order must abide by pre-court protocol. Guidelines must be adhered to before proceedings are brought to court and the grounds are reasonable so possession can be granted.
Wales currently abides by English legislation for reclaiming possession, grounds are derived from HA 1985 (secure) and HA 1988 (assured). RH (Wales) Act 2016 will replace current legislation and long list of grounds for possession, aiming to simplify to ensure contract-holder and landlord are clear on how the property can be repossessed. Principle grounds for possession under this act:-
1) Breach of contract by contract holder-This is a discretionary ground. Court order for possession will be granted if reasonable to do so.
2) Estate management grounds-Three principal types of discretionary ground: redevelopment; special accommodation; under-occupation. Suitable alternative accommodation must be provided and court deems it reasonable to grant possession under relevant grounds.
There is only one mandatory ground for possession for secure and standard contracts, whereby a contract holder gives notice to terminate then fails to leave on that date. For standard contracts there are another two mandatory grounds for possession by landlord -Serious Rent
Arrears and “no-fault” notice. (White,n.d.)
In Scotland there are no mandatory grounds for possession of SST under Housing (Scotland) Act 2001. There are 15 discretionary grounds, 1-7 being ‘fault’ grounds (ASB/crime, rent arrears) 8-15 being management grounds (overcrowding, demolition). The evicting landlord must offer another suitable property. (mygov.scot,2018). PRT’s there are 18 grounds (10 mandatory, 8 discretionary), divided into four areas-property required for another purpose, status of tenant, conduct of tenant and legal reason why tenancy can’t continue. (Shelter Scotland, 2019)
ASB LAW
Social landlords in UK have a range of powers to deal with ASB. English and Welsh powers predominately derive from the ASBCPA, 2014. The Act defines ASB as “Conduct that has caused or is likely to cause harassment, alarm, or distress to any person where the anti-social behaviour has occurred in a public place” “Where conduct is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises or the conduct is capable of causing housing related nuisance or annoyance to any person”. (ASBCPA,2014,Part 1)
In Wales, social housing landlords are members of a multi-agency Community Safety Partnership. The Crime and Disorder Act 1998 introduced Community Safety Partnerships as the Government realised that ASB/Crime wasn’t the responsibility of an individual agency. The Act placed a statutory responsibility on Police and LA’s to be principal partners, cooperating with probation and health to produce a crime audit and local crime and disorder strategy. (CIH,2019)
The 2003 ASB Act placed a duty upon LA’s and RSL’s to prepare, publish and review policies/procedures on dealing with ASB/nuisance behaviour. The public and tenants are aware of actions social housing landlords could take to tackle ASB. (Shelter Legal, 2018)
The landscape in which housing landlords tackled ASB changed after production of the white paper “putting victims first: more effective response to ASB” by the 2012 Coalition Government which led to The ASBCPA 2014 in England and Wales. It replaced some historical ASB/Crime legislation, aiming to provide better protection for victims/communities and provide more effective, efficient and simpler powers to tackle ASB. (Home Office, 2017)
Pre-existing ASB powers were reduced from nineteen to six. Those predominately used by housing providers:-
Civil Injunctions-Replaced ASBO’s/ASB Injunctions. Prevent individuals carrying out a certain behaviour but can also include a positive requirement. Applies to persons over 10 and can include a power of arrest.
Criminal Behaviour Orders (CBO)-for more serious offences of ASB/criminal behaviour, available on conviction of a criminal offence at court. CBO’s can be made for one year for under 18’s and three for over. The ASB activity does not have to be connected to the criminal offence leading to conviction.
Community Protection Notices (CPN)-issued to persons 16 or over, if behaviour is deemed unreasonable and having a detrimental effect on the communities’ quality of life. No restrictions on behaviour a CPN can address. Initially a CPN warning is issued, if conduct persists the notice is issued and further breaches will be a criminal offence.
Closure Orders-Premises can be closed where there is significant and persistent disorder. It can prohibit everyone or only allow persons with a legitimate right to reside. An order can initially be made for three months but extensions can be applied to total six months.
(Home office,2017)
The ASBCPA 2014 enabled LA’s and RSL’s to use ASB mandatory grounds for possession on secure and assured tenancies. Unlike discretionary grounds where courts can grant a Suspended Possession Order (SPO), mandatory grounds are absolute. The five mandatory grounds for possession relate to ASB of the tenant, member of tenant’s household or visitors:-
• Convicted of a serious offence
• Convicted of a breach of CBO
• Convicted of a breach of Noise Abatement Notice
• Civil Injunction breach
• Closure order for ASB
(Samra,2014)
Mandatory grounds were introduced to expediate evictions of the most serious ASB offenders, providing faster relief to victims (Lane,2014). RH (Wales) 2016 Acts will remove the power in Wales, but discretionary grounds prohibiting ASB will be a fundamental term incorporated into every occupation contract.
The ASB Act 2003 provides an alternative power to possession proceedings for LA’s and RSL’s via demotion of a tenancy for 12-18months if a tenant, someone living or visiting has caused ASB/crime. Tenant eviction is easier and rights to succeed/assign are usually removed. (Shelter Legal,2018)
Community Trigger was introduced by ASBCPA 2014, enabling a dissatisfied victim who has reported three or more ASB incidents to an agency (housing/police etc.) within six months to activate a multi-agency case review. Decisions are made if additional actions are warranted. The Act also created community remedy, allowing victims input on punishment of an ASB offender where guilt is admitted. (ASBhelp,2018)
Scottish LA’s and RSL’s are also duty-bound in tackling ASB. Their main and recent legal powers derive from The ASB etc (Scotland) Act 2004. Scottish LA’s have a legal duty to work with Police to publish and review ASB strategies, collaborating with other agencies, e.g. RSL’s.
The ASB etc (Scotland) 2004 Act, is comparable to the ASBCPA 2014 in terms of providing legislative tools for LA’s and RSL’s to tackle ASB: –
• ASBO’s-still prevalent in Scotland (replaced by CBOs within Wales). Can be granted against persistent ASB offenders, 12 years or over. An
ASBO is a preventative order and if breached is a criminal offence.
• ASB Notices–served by LA’s on landlords to ensure they take responsibility for tackling ASB caused by tenants. Failure to cooperate is a criminal offence. LA’s can also apply for a management control order to take over running the property.
• Closure of premises- for up to three months with a court order; prohibits access to combat ASB. Similar process to Wales.
(Scottish Government,2004)
Scottish landlords can obtain interdicts, similar to civil injunctions within Wales, which prohibit a person from doing something or getting near another person/place. (Out-Law.com,2017)
The Housing (Scotland) Act 2001 provides ASB discretionary grounds for SST landlords to take possession proceedings. However, unlike SPO’s in Wales a case can be adjourned if a defendant gives an undertaking to behave. (Scottish Government,2007). Demoting a tenancy is a power predominately used by landlords. Usually an SST tenancy is demoted to a SSST if the tenant/someone living at the address has an ASBO or has been evicted for ASB within the last three years. Obtaining ASBO’s on tenants in Scotland allows the tenure to be weakened, easing the eviction process. (Scottish Government,2006)
There is strong legislation available to housing landlords in Wales/Scotland to tackle ASB, however actions taken must comply with HRA and EA to nullify challenges.
CONCLUSION
The legal framework within housing is complex and requires an understanding of legislation and protocols to prevent challenges, predominately in relation to Equality and HR’s. Key legislation governs landlord/tenant relationships and rights of the tenant and landlord vary on security of tenancy. Welsh tenancy types/security is similar to England, however RH (Wales) Act 2016 will follow Scotland in simplifying the law on renting by introducing two occupation contracts.
A range of powers are available to social landlords to tackle ASB. Most recently, The ASBCPA, 2014 simplified and reduced powers available in Wales, similar to Scottish legislation. The impact of the RH (Wales) Act 2016’s removal of the mandatory ASB ground for possession will be determined in time.