PLC Public Sector reports:
In the days following the riots that took place across England between 6 and 9 August 2011, the government has announced various measures to assist those affected and many discussions have taken place about the reasons for the trouble and what could be done to prevent it happening again. However, possibly the most popular subject for discussion has been how those convicted may be punished in ways other than through the criminal justice system.
With government support, many local authorities and housing assosications have pledged that one way this may be done is through evicting those convicted of offences from social housing. In this post we look at the legal position facing those promising to do so and how this position may change.
WHAT THE LAW SAYS
Can a tenant be evicted? The relevant grounds for eviction are set out in Schedule 2 of the Housing Act 1985. Ground 2 provides for eviction where:
“The tenant or a person residing in or visiting the dwelling-house-
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b) has been convicted of using the dwelling-house or allowing it to be used for immoral or illegal purposes, or an indictable offence committed in, or in the locality of, the dwelling-house.”
This provision relates to secure tenants. The provision is mirrored in ground 14 of schedule 2 of the Housing Act 1988 for assured tenants.
Therefore, the simple answer to the question is yes, a tenant can be evicted if they, or importantly anyone (for example, one of their children), is convicted of conduct causing or likely to cause a nuisance or annoyance. However, nothing is ever as simple as it first looks.
POTENTIAL ISSUES
How local is local?
Firstly, “locality” is not defined in either the 1985 or 1988 Housing Acts. Therefore whether a conviction relating to conduct within a shopping centre a considerable distance away from a social housing property would qualify is open to interpretation. It is certainly not inconceivable that a court may hold that the term was intended to refer to, for example, the housing estate on which the property is located. It seems highly unlikely that if the offence occurred in another local authority area, that the requirement would be satisfied.
Whatever the circumstances, it is clear that unless a eviction relates to action literally on the doorstep of the property concerned, there will be an argument over its validity when the matter comes to court.
At the court’s discretion
Grounds 2 and 14 are both discretionary. This means that once a conviction has been secured, an application must be made to court for a possession order, which will need to satisfy itself that it is reasonable to make the order. Even if the court considers that it was reasonable, it could also decide to postpone or even suspend such an order. It also means that Article 8 of the ECHR and the issue of proportionality would once again come into play as in cases such as Doherty and Kay. So without even considering the legal technicalities of this, it would be safe to say that it is unlikely that this form of justice will be swift.
WHAT THE LAW MIGHT SAY
As stated at the beginning of this post, the government appears keen to support this type of action and Eric Pickles has indicated that the government will consult on removing the locality element of Grounds 2 and 14 for possession. It will be interesting to see precisely how this is taken forward as it would appear that removing this ground would have the effect of disqualifying anyone convicted of an indictable offence (or anyone whose spouse or children are convicted) from eligibility for social housing altogether.
As stated above those grounds for possession are discretionary. This means there are several additional hurdles for a social housing landlord to clear before any eviction can take place. While the government has not yet indicated that it intends to change this position, it has already launched a consultation on a new mandatory ground of possession for anti-social behaviour. It does not seem to be a quantum leap to in some way that has the effect of expanding this new mandatory ground to also address certain types of conviction for civil disorder.
OUT OF A HOME AND OUT OF A JOB?
While much of the media focus has been on the social housing issue, some employers may be asking what action they can take if any of their employees were involved in the riots, that is, can they be dismissed? While any employer considering taking disciplinary action should take legal advice before acting, the answer is that dismissing an employee is likely to be an option only in very limited circumstances. For more information see our practice notes on unfair dismissal and “some other substantial reason” for dismissal.
For those employers that do now want to dismiss employees in these circumstances but are faced with non-attendance from an employee caught in the criminal justice system, the decision of the Employment Appeal Tribunal decision in Burns v Santander UK plc will be of interest. Here it was held that an employee remanded in custody pending a criminal trial (which led to conviction) was not “unavoidably” prevented from working and therefore was not entitled to his wages.