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PRPSHs policies and procedures on rent arrears and antisocial behaviour

This content applies to England

Guidance where a private registered provider of social housing seeks possession, and their policies for dealing with rent arrears and antisocial behaviour.

PRPSH policies for dealing with rent arrears

Private registered providers of social housing (PRPSHs) usually have considerable experience of the problems faced by some of their tenants. They often agree to suspended possession orders or to adjournments, The Regulatory framework for social housing in England and Regulatory Code for housing associations in Wales state that eviction should be used as a last resort. PRPSHs have been discouraged or prohibited from using mandatory grounds for possession, and many PRPSHs will only use discretionary grounds, especially in rent arrears cases.

Rent arrears and possession action

In possession proceedings for rent arrears, advisers may query whether PRPSHs have complied with the following points:

  • proceedings are discouraged where the entire cause of the rent arrears is default by the housing benefit office or the Department for Work and Pensions
  • the Pre-action Protocol for Possession Claims by Social Landlords outlines the steps that they should take when rent arrears arise before resorting to possession proceedings. Courts should take account of whether the Protocol has been followed when deciding what order to make)[1]
  • government guidance for PRPSHs on rent arrears management states that:[2]
    • landlords can and should actively assist tenants with housing benefit claims
    • in communicating with tenants about rent arrears, landlords should place emphasis on direct personal contact rather than correspondence
    • attempts to negotiate arrears repayment agreements should continue alongside any legal action and should not cease until the bailiffs visit
    • tenants should never be served with a notice of seeking possession until the landlord has established personal contact or exhausted all possible means of doing so
    • notice of possession proceedings should be served on tenants with unresolved housing benefit claims only where it has been established beyond doubt that the claim remains outstanding due to the tenant's failure to supply requested information or provide requested documents or if the tenant is failing to pay agreed personal contributions

Representation at court hearings

The court will usually allow a housing officer to represent a PRPSH at hearings.[3]

PRPSH policies for dealing with antisocial behaviour

PRPSHs are required to have policies and procedures for dealing with antisocial behaviour.[4]

The policy and procedures must be available for inspection and a copy available on payment of a reasonable fee. A free summary should also be available. The policy must be reviewed with regard to guidance issued by the Secretary of State.[5]

There are remedies other than possession that are available to PRPSHs in antisocial behaviour cases, and which PRPSHs are expected to consider and to use where appropriate. These include injunctions, demotion orders and antisocial behaviour orders (ASBOs).

Injunctions used by PRPSHs

There are three types of injunction relevant to PRPSHs, being antisocial behaviour injunctions, injunctions against unlawful use of premises, and injunctions against breach of a tenancy agreement.

Antisocial behaviour injunctions

For antisocial behaviour injunctions,[6] the defendant must be engaging, have engaged, or be threatening to engage in conduct that is capable of causing nuisance or annoyance to any person, and which relates to or affects the housing management functions of the landlord. The conduct must be capable of causing nuisance or annoyance to a person lawfully living in the landlord's accommodation or neighbourhood, lawful visitors, or someone employed in connection with the exercise of the relevant landlord's housing management functions.

The landlord does not have to prove that nuisance or annoyance has actually been caused. Therefore neighbours or other tenants do not have to provide witness statements in support, because evidence can be given by professional witnesses, such as housing officers or the police. It is immaterial where the conduct occurs. The injunction can be applied for on its own, or as part of possession proceedings. It can be made against any person, not just the tenant.

Injunctions against unlawful use of premises

Landlords may apply for injunctions where someone has used or threatened to use their house/home for an unlawful purpose, for example, drug dealing or prostitution.[7]

Injunctions against breach of a tenancy agreement

Landlords may apply for injunctions against a tenant in respect of a breach or anticipated breach of the tenancy agreement, on the grounds that the tenant is:[8]

  • engaging or threatening to engage in conduct that is capable of causing nuisance or annoyance to any person
  • allowing, inciting or encouraging any other person to engage or threaten to engage in such conduct

Exclusion orders and powers of arrest

When granting an injunction under the above sections, the court may attach a power of arrest to the injunction.[9] Alternatively, the injunction may exclude a person from specified premises or a specified area where there is the use or threat of use of violence, or a significant risk of harm (which is defined as including serious ill treatment or abuse whether physical or not). A person may even be excluded from her/his own home. Such a remedy is only likely to be used in the most serious of cases, and then only granted on an interim basis until a full hearing.

The court may attach a power of arrest to any provision of the injunction. All injunctions are granted for a specified period of time, and can be applied for with or without notice. If a without-notice application is made, there should be a very good reason, and the defendant will normally be given the opportunity to make representations as soon as possible after the making of an order.

PRPSH demotion orders

PRPSHs in England can apply for demotion orders,[10] which reduce a secure or assured tenancy to a demoted assured shorthold tenancy.

The landlord must serve a notice before applying for an order of at least two weeks for assured tenancies, and four weeks for secure tenancies.

The court may only make a demotion order if the:

  • tenant or a person residing in or visiting the dwelling house has engaged or threatened to engage in antisocial behaviour (as defined in the section on injunctions above) and
  • landlord has served the necessary notice, unless it is just and equitable to dispense with notice
  • court is satisfied that it is reasonable to make an order for a demoted tenancy

Effect of a demotion order

From the date specified in the order, security of tenure is lost and a demoted tenancy comes into effect. Any rent owed to the landlord under the previous tenancy is still due, and the parties, tenancy period, rental payment, and due dates remain the same. The landlord can serve a statement on the tenant specifying other terms of the former tenancy that are to remain effective.

The tenancy is demoted for a period of 12 months. The demotion period will continue beyond the 12 months if the landlord serves notice of proceedings for possession within those 12 months. If notice of proceedings for possession is served, then the tenancy will stay demoted until:

  • the notice is withdrawn, or
  • six months has elapsed without possession proceedings being issued, or
  • possession proceedings have been determined in favour of the tenant

After the period of demotion, an assured tenancy is restored. Tenants who were previously PRPSH secure tenants become assured tenants if their security is restored. This means that they lose some of their rights, such as succession rights.

Possession and demoted tenancies

Unlike tenants of local authorities, there is no statutory review procedure for PRPSHs tenants.[11]

If the landlord seeks possession of a demoted tenancy, possession can be obtained using the accelerated possession procedure. The landlord must give at least two months' notice. The normal requirement that a possession order will not take effect earlier than six months after the grant of the tenancy does not apply.[12]

PRPSH and ASBOs

PRPSHs can apply for ASBOs. An ASBO may be available against a person who is not a tenant, such as a tenant's partner or child.[13]

ASBOs can be used to prohibit an individual from entering a specific property and its surrounding area, or from conducting threatening, abusive or insulting behaviour within a certain area. The minimum duration for an ASBO is two years; there is no maximum.[14]

An application for an ASBO is made to the magistrates' court,[15] which must be satisfied that the order is necessary to protect a person (or persons) from further antisocial acts or behaviour. Breach of the order is a criminal offence carrying a maximum penalty of five years' imprisonment, a fine, or both.[16]

For more information, see Harassment and antisocial behaviour.

[1] Pre-action Protocol for Possession Claims based on Rent Arrears, Civil Procedural Rules SI 1998/3132, as amended.

[2] Improving the Effectiveness of Rent Arrears Management - Good Practice Guidance, CLG, June 2005.

[3] rule 39.6 Civil Procedure Rules SI 1998/3132.

[4] s.218a Housing Act 1996 as inserted by Antisocial Behaviour Act 2003.

[5] Regulatory framework for social housing in England from April 2010, Tenant Services Authority, March 2010; or the Regulatory Code for housing association registered in Wales, National Assembly for Wales, March 2006.

[6] s.153a Housing Act 1996 as inserted by Antisocial Behaviour Act 2003.

[7] s.153b Housing Act 1996 as inserted by Antisocial Behaviour Act 2003.

[8] s.153d Housing Act 1996 as inserted by Antisocial Behaviour Act 2003.

[9] s.153c Housing Act 1996 as inserted by Antisocial Behaviour Act 2003.

[10] ss.14-15 Antisocial Behaviour Act 2003.

[11] This is because the Demoted Tenancies (Review of decisions)(England) Regulations 2004 SI 2004/1679 only cover situations where the landlord is a local authority or Housing Action Trust.

[12] s.21(5A) Housing Act 1988.

[13] s.85 Antisocial Behaviour Act 2003.

[14] s.1(7) Crime and Disorder Act 1998.

[15] s.1(3) Crime and Disorder Act 1998.

[16] s.1(10)(a) and (b) Crime and Disorder Act 1998.

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