Nobody calls me "a demoted shorthold" an' gets away wiv it! The Anti-Social Behaviour Act 2003 makes significant changes to housing law that are expected to come into force on 30 June 2004. District Judge Nic Madge takes a closer look

Imminent changes to housing law are expected to include a new Civil Procedure Rules 1998 part 65 and practice direction for the provisions.


Section 16 amends the Housing Act 1985 and the Housing Act 1988 by inserting, respectively, new sections 85A and 9A. They relate to possession claims against secure and assured tenants based on allegations of anti-social behaviour (grounds 14 and 2). These are discretionary grounds. Even if the ground for possession is proved, the court can only make an order for possession (either outright or suspended) if it considers it reasonable to do so.


The discretion is broad. The court has always had to take into account all relevant circumstances. The new sections provide that if the court is considering whether it is reasonable to make an order for possession on ground 2 or ground 14, it must consider, in particular: the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought; any continuing effect the nuisance or annoyance is likely to have on such persons; and the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.


Part V of the Housing Act 1996 introduced wide-ranging powers for local authorities and registered social landlords to obtain injunctions with powers of arrest. The Anti-social Behaviour Act repeals sections 152 and 153 and replaces them with five new sections - 153A to 153E.


Free-standing anti-social behaviour injunctions under section 153A can be granted irrespective of whether or not there is any other common law or statutory cause of action. Such injunctions may be granted to restrain conduct that is capable of causing nuisance or annoyance to any person, or that directly or indirectly relates to or affects the housing management functions of a 'relevant landlord' - namely, a housing action trust, local authority or registered social landlord (section153E). However, applications for section 153A injunctions may be sought against any person, whether or not they are a tenant.


The court can only grant an anti-social behaviour injunction if two conditions are satisfied. Firstly, the person against whom the injunction is sought must be shown to be engaging, to have engaged or threatened to engage in conduct that is capable of causing nuisance or annoyance to any person, or that directly or indirectly relates to, or affects, the housing management functions of a relevant landlord. Secondly, that conduct must be capable of causing nuisance or annoyance to: a person with a right to reside in or occupy housing accommodation owned or managed by the relevant landlord; or a person with a right to reside in or occupy other housing accommodation in the neighbourhood of such housing accommodation; or a person engaged in lawful activity in or in the neighbourhood of such housing accommodation; or a person employed in connection with the exercise of the relevant landlord's housing management functions. Such a person does not have to be employed by the relevant landlord (section 153A(4)).


The section is broadly drafted and has the effect of reversing the effect of cases such as Manchester CC v Lee [2003] EWCA Civ 1256; [2004] 1 WLR 349 (section 152 injunction not available if victim was owner occupier), and Enfield LBC v B (a minor) [2000] 1 WLR 2259, CA and Nottingham CC v Thames [2002] EWCA Civ 1098, [2003] HLR 14 (requirement for a connection between the residential premises and the person requiring protection).


There is no need for the claimant to prove that nuisance or annoyance has been caused. It is sufficient that the conduct is capable of causing nuisance or annoyance to any person. This avoids the need for neighbours or other tenants to make witness statements in support of the application. It is immaterial where the conduct complained of occurs.


Section 153B allows specified landlords to apply for injunctions where someone has used or threatened to use their housing for an illegal purpose - for example, drug dealing or use of the premises as a brothel.


Section 153C allows courts granting injunctions under sections 153A or 153B to attach a power of arrest to the injunction or to exclude a person from specified premises or a specified area where there is the use or threat of violence or a 'significant risk of harm', which includes emotional or psychological harm. A power of arrest or an exclusion order may be attached to a section 153A or section 153B injunction even if there has been no actual or threatened violence.


Section 14 of the Anti-social Behaviour Act inserts new provisions into the Housing Acts of 1985 and 1988 to allow secure and assured tenancies to be brought to an end by a demotion order. Local authorities, housing action trusts and registered social landlords can apply for demotion orders if the tenant, another resident or visitor to the tenant's home has behaved in a way that is capable of causing nuisance or annoyance or if such a person has used the premises for illegal purposes.


In addition the court must be satisfied that it is reasonable to make the order. A demotion order ends the secure or assured tenancy on a specified date. If the tenant remains in occupation, a new demoted tenancy, without security of tenure or associated rights, begins on the same date. In the case of a former assured tenant, the new tenancy is a demoted assured shorthold tenancy.


New sections 143A to 143P in the Housing Act 1996 set out the rights that former secure demoted tenants have and provide a mandatory possession procedure. Provided that certain procedural requirements (statutory notice and review) are met, the court must make a possession order. The mandatory Housing Act 1988 section 21 procedure (two months' notice) applies to demoted assured shorthold tenants, except that section 21(5) (no possession order to take effect within six months of the grant of the tenancy) does not apply. Demoted tenancies revert to secure and assured tenancies after one year, unless the landlord has issued a notice of proceedings for possession during that year.


Nic Madge is a district judge and recorder and a contributor to Civil Procedure (The White Book)