Tony Davies examines the importance of giving appropriate notice and proper evidence in anti-social behaviour cases

In an article last year, I considered the approach to be taken in presenting certain aspects of the evidence of nuisance and anti-social behaviour ([2005] Gazette, 29 September, 35). The general approach to handling such cases also requires careful thought.


Local authority landlords, registered social landlords and housing action trusts can apply for anti-social behaviour injunctions under sections 153A to 153E of the Housing Act 1996. In Moat Housing Group-South Limited v Harris and Hartless [2005] EWCA Civ 287, the Court of Appeal dealt with an appeal that followed the making of a without-notice exclusion order that required the defendant tenant and her family to vacate their home, and an appeal from the substantive possession order that was subsequently made on nuisance grounds. Lord Justice Brooke gave the judgment, and although many of the comments are made in the context of the without-notice ouster order, they are relevant to many applications for anti-social injunctions.


Here, I do not deal with or comment on the substantive law, but instead on matters of procedure and presentation.


The claimant should comply with its own obligations under its tenancy agreement and its own published policy. Section 218A of the Act places an obligation on relevant landlords to prepare and publish a policy on anti-social behaviour and on procedures for dealing with occurrences of anti-social behaviour. If a housing association is involved, the landlord should comply with the guidance issued by the Housing Corporation.


The court in Moat Housing referred to guidance issued by the corporation in July 2004. This provided that associations should act to support and sustain, rather than terminate, a tenancy, and advised that associations should pursue alternative interventions to deal with anti-social behaviour, retaining eviction as a last resort.


Moat Housing's published policy said it would take action in serious cases to obtain injunctions, anti-social behaviour orders, demotion orders and possession orders as appropriate. Its tenancy conditions said: 'If we decide to end your tenancy, we must write to you first to tell you why.'




Appropriate notice


In Moat Housing, the court was particularly concerned that the defendant had received no notice that she was at risk of losing her home if the anti-social behaviour continued, and that no evidence was presented to the court that any complaints about the behaviour were put to the tenant between the start of the tenancy in May 2001 and the filing of the without-notice application for an injunction in October 2004.


The same principles should apply before any court application is made for an injunction or possession order on anti-social behaviour grounds. It must be good practice to inform tenants of the complaints at the time when they are made, and to inform the tenant of the consequences of further such behaviour before proceedings are being considered as an option.



In Moat Housing, one criticism by the court was that '[there was] no evidence of any kind... about the welfare or the mental or physical health of the... children and there was no evidence that there had been any contact at all between the claimants and the local social services authority, the local housing authority, the children's schools, or any local welfare agency'.



The court would have expected a social landlord:


  • 'To be alert to intervene at a far earlier stage than occurred in the present case' where the behaviour of a tenant's children is at the root of much of the trouble in an estate and they are at risk of losing their home;


  • To 'use the full range of tools to tackle the tenant's anti-social behaviour, and that of her children and partner', and to view eviction as a last resort; and


  • To look at the possibility of an anti-social behaviour contract or offering the family diversionary activities.





    • Evidence


    One difficulty with the presentation in Moat Housing was that the evidence was concerned with two separate families occupying two separate households. This led to a blurring of the distinction between behaviour for which one family was responsible and behaviour for which the other family was responsible. In reality, most of the allegations covered by the evidence related not to the family of the tenant who appealed to the court, but to the other family.



    Evidence in support of applications for anti-social behaviour injunctions and possession proceedings on nuisance grounds should, said the court:



  • Deal distinctly with the behaviour of the defendant, members of his or her family, and visitors to the defendant's property;


  • Not merely make general assertions or read like 'the opening speech for the prosecution in a criminal trial'. It should include the specific factual evidence to back up any general assertions;


  • Be as specific as possible so that the defendant knows exactly what is alleged, and when it is alleged to have occurred, so that the defendant can adequately know what he or she has to answer; and


  • Be cautious in the way that hearsay evidence is relied on and presented.



    • Hearsay should not be introduced just because it is the quicker or easier option. The presentation of the hearsay evidence should be specific.


    The source should be identified wherever possible. If it is not possible to identify the source or if the source does not want to be identified, this must be stated and the reason for this given.


    There may be situations where the defendant will know who the source is from the nature of the evidence. Is it sensible in that sort of case to fail to produce direct evidence from that witness? There may be situations where a prospective witness may be in fear of intimidation - they may derive some comfort from the prospect of a term in an injunction that is specifically targeted towards their protection.


    A witness who does come forward when there is a risk or worry about intimidation should be recognised and valued. If the source of the proposed hearsay evidence can be identified, then it will be more effective to produce direct non-hearsay evidence from that source, covering all of the relevant matters reported.


    I considered the issue of hearsay in more detail in my September article.


    District Judge Tony Davies sits at Birmingham Civil Justice Centre