'Legislate to Punish, Fail to Provide'

One of the latest ‘big ideas’ from Tony Blair’s ‘Respect Agenda’ is that "anti-social neighbours could face the loss of their housing benefit"...

You may be experiencing deja vu. Yes, you did read it before – two years ago – when it was quietly dropped, another New Labour idea designed to attract headlines but impossible to implement. The proposal is that tenants evicted for 'anti-social behaviour' would then face the loss of their housing benefit if they "refuse to take help to address the underlying causes of their behaviour". The suggestion is that help will be on offer, something that many workers in hard-pressed local authorities or the voluntary sector will find hard to stomach.

What does this mean in practice?

Local authorities, housing associations and the Courts are now pretty tough on 'anti-social behaviour'. Just ten years ago, the number of claims for possession on the grounds of nuisance behaviour were few and far between, and those that were brought were frequently adjourned on terms. At worst, usually a suspended possession order was made so that the household wasn’t evicted provided that it complied with terms. In my practice, just ten years ago, evictions for anti-social behaviour only usually happened after there had been a breach, or several breaches, of a suspended possession order.

Nowadays, tenants are regularly subject to possession proceedings for all sorts of reasons, including the behaviour of their children. And, even though the adult tenant might be blameless, if the behaviour is considered serious enough, the Court may consider it appropriate to make an outright order for possession (see Manchester City Council v Higgins). And there are a whole raft of additional powers available, which social landlords are only too keen to ask for and Courts only too keen to grant. ASBOs are well documented.

The Court can also order that an individual or a family is excluded from a particular area (an exclusion order s.153C Housing Act 1996) and subject to a power of arrest. An exclusion order, prohibiting entry into a tenant’s own home, can also be an interim remedy, made whilst the possession claim is still proceeding, and backed up by a power of arrest.

Once evicted, the family is almost certain to be found intentionally homeless. Local authorities have no duty to provide accommodation except for a very short period and the family has to find its own accommodation in the private rented sector. It will shuttle between assured shorthold tenancies, often finding that housing benefit (still available) doesn’t pay the whole of the contractual rent and so rent arrears accrue until they lose that accommodation. Perhaps, once alternative accommodation has been exhausted, the local authority will accept the family and not find it intentionally homeless. But only if there has been intervening settled accommodation. If the family has wandered from one particular insecure accommodation to another (staying with family or friends etc), the local authority will still look back at why it was evicted in the first place.

If housing benefit is withdrawn, households evicted for anti-social behaviour will find it impossible to obtain private rented accommodation. They won’t be housed by local authorities. Far more of them will be shuffling between friends and family, facing the break-up of their family, and unable to afford accommodation that would constitute intervening settled accommodation, so as to allow them to re-apply to a local authority and not be found intentionally homeless.

Supposedly, there are carrots as well as sticks. Good practice policy in anti-social behaviour recommends early intervention once there are complaints, trying to ensure that any underlying problems causing the anti-social behaviour can be resolved etc, providing social work, having a multi-agency and multi-disciplinary approach etc. Day-to-day experience in the Courts suggest that ‘good practice’ is mainly ignored by the authorities.

Once the family is evicted, the multi-agency approach is supposed to continue, so as to protect the children. If the family is to be found intentionally homeless, social services should be contacted and asked to help find a home (s.213A Housing Act 1996). In practice, social services tend to regard such requests as distractions from their main statutory function of child protection, and attempts to obtain housing through the backdoor. The referral often results in nothing but a few sheets of paper. So what exactly is the 'help' that the government is suggesting could be offered by the state?

Why would withdrawing housing benefit act as a deterrent? If the behaviour could be deterred, surely the prospect of being evicted, found intentionally homeless, dependent on the private sector or the charity of friends or family would act as a deterrent. Why add the loss of housing benefit on top of all that?

None of this should be read as a justification for racism, violence, threats of violence and abuse of neighbours. Where households put their neighbours in fear or at risk, there should be intervention by the landlord. There should even be the ultimate threat of eviction by the Court. But that should all be coupled with early offers of intervention and effective help to tackle the causes of anti-social behaviour, and a step back from the knee-jerk use of eviction, in many cases a sledgehammer to crack a nut. Remember "tough on crime, tough on the causes of crime"? With anti-social behaviour, as with crime, the government seems to ignore the causes in favour of a punitive approach.

The government spins its ‘Respect Agenda’ as being a mixture of punishment and deterrence, on the one hand, and increased multiagency help to problem families, on the other. The reality is that it legislates to punish and fails to provide the promised help. This proposal will be just the same.

Liz Davies

This article can be found in the print edition of Socialist Lawyer 44.