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C hapter Six - Other Enforcement Measures to Tackle Antisocial Behaviour

Introduction

6.1 This chapter examines the extent to which, in tackling ASB, LAs and RSLs use other legal and enforcement type measures in conjunction with ASBOs. Measures considered include Acceptable Behaviour Contracts ( ABCs), court proceedings for eviction and Short Scottish Secure Tenancies ( SSSTs). The chapter draws on the annual ASBO activity surveys undertaken in the course of the research, as well as on Scottish Executive data and case study material.

6.2 The various measures examined in this chapter have the potential to be utilised in conjunction with ASBOs in different ways. While ABCs may be used as a precursor to ASBOs, eviction proceedings are more likely to be initiated alongside an ASBO application. SSSTs can feature in the process once an ASBO has been granted.

Acceptable Behaviour Contracts

6.3 While it has no legal enforcement, the term Acceptable Behaviour Contract ( ABC) is defined in the research literature as 'a written agreement between a person who has been involved in antisocial behaviour and one or more local agencies whose role it is to prevent such behaviour'²⁴. Given the absence of legal force, some LAs and housing associations prefer to use the term Acceptable Behaviour Agreement ( ABA). While recognising this logic, the conventional terminology is used in this chapter for the sake of convenience.

6.4 An ABC is typically drawn up by a LA or housing association in consultation with the individual concerned. The document specifies antisocial acts that the person has perpetrated and which they agree to desist from in future. The contract may also state the potential consequences of breach, which can, in some cases, include an application for an ASBO or Possession Order. Official guidance suggests that ABCs should also stipulate the support the individual can expect from the agencies involved (see para 50 in: Scottish Executive (2004) Guidance on the Use of Antisocial Behaviour Orders http://www.scotland.gov.uk/Resource/Doc/26350/0025277.pdf). In that they involve ASB perpetrators facing up to their misconduct and its effect on others, ABCs have been classed as a form of restorative justice ²⁵.

6.5 ABCs are being used increasingly by LAs and RSLs in Scotland. As shown in Figure 6.1, the numbers of ABCs negotiated has been rising more quickly than the number of ASBOs sought from the courts. By 2005/06, the use of ABCs was recorded in 27 of the 32 LAs, as well as by 14 RSLs. As shown in Table 6.1, however, the scale of their use varies substantially between authorities. It should be noted that the apparently low figure for Glasgow may, in part, reflect the Council's post-2003 'non-landlord status' and does not include any ABCs negotiated by Glasgow Housing Association.

Table 6.1. Use of Acceptable Behaviour Contracts by LAs in 2005/06

Source: 2005/06 national survey
Note 1: East Dunbartonshire, East Lothian, Fife, Scottish Borders and Stirling are omitted from this table since they did not report having drawn up any ABCs in 2005/06.
Note 2: This table shows ABC activity in local authorities only due to incomplete data from RSLs.

6.6 ABCs are usually seen as a device that is particularly appropriate to young people. The 2005/06 national survey showed that around three-quarters of ABCs set up by LAs and RSLs in 2005/06 were for persons aged 21 and under (see Figure 6.2). Almost half (47 per cent) related to young people aged under 16. At the same time, it appears that LAs and RSLs may be tending to widen the use of ABCs away from young people who are still to form households of their own. Figure 6.3 suggests a growing proportion of contracts are being set up with existing council (or RSL) tenants.

6.6 ABCs appear to be a relatively effective device when measured by the proportion of agreements where the terms are honoured by perpetrators. Almost three-quarters of ABCs enacted in 2004/05 (72 per cent) were reported as having been honoured by subjects for at least 12 months. This might be seen as surprising, given that breach of ABC carries no legal sanction. By the same token, however, ABCs - as voluntary agreements - are perhaps more likely to be entered into if there is a willingness at the outset to comply. Another potentially relevant factor is that, in some cases, refusal to sign an ABC or breach of its terms can lead to the imposition of an ASBO.

6.7 As noted above, ABCs are sometimes described as a precursor to ASBO action. ASBO application may be specified in an ABC as a possible consequence, should the subject breach the terms of the agreement. However, as shown in Table 6.2, below, a staged process moving from ABC to ASBO appears to be fairly unusual. In only 11 of the 97 cases covered by this analysis was it clear from the case file that an ABC had been used prior to the ASBO being sought. This confirms the national survey finding that of the 251 cases where ASBOs were granted to LAs in 2005/06, in only 14 instances had LAs previously or concurrently negotiated an ABC.

Table 6.2. ASBO cases in case study LAs (97) - other measures used prior to or alongside ASBO application

Source: Case file review

6.8 The general conclusion from this analysis appears to be that there is little connection between the use of ABCs and ASBOs. This is partly because a large proportion of ABCs are used for young people aged under 16: a group very rarely subject to ASBOs (see Chapter 3). It also probably reflects the fact that ABCs are seen as an appropriate response to misconduct less serious than the threshold usually seen as appropriate for ASBO application.

6.9 While it is not an 'enforcement style' response to ASB, it is also worth mentioning that mediation is rarely seen as an appropriate response to ASB cases that trigger ASBOs. In only 22 of the 251 cases where ASBOs were granted to LAs in 2005/06 had mediation been previously attempted. This probably reflects the commonly held view among social landlord staff that cases involving ASB serious enough to warrant ASBO application are usually above the threshold for mediation (which is primarily valuable for lower level neighbour disputes where there is no pre-eminent 'aggressor').

Court proceedings for eviction

6.10 In instances where the tenant of a social landlord breaches the terms of their tenancy agreement, the council or RSL concerned can initiate proceedings to recover possession of their home. Subject to Court approval, a tenant's home can be repossessed and the tenant evicted. Most social landlord eviction actions result from unpaid rent arrears. However, a small proportion stem from ASB.

6.11 Traditionally, eviction action was seen as virtually the only effective form of civil legal action open to a LA in tackling ASB (provided, of course, that the culprit was a council tenant). One of the arguments for introducing ASBOs was the need to reduce LAs' reliance on eviction proceedings for this purpose. Arguably, an ASBO can facilitate a more precisely targeted response because it is addressed to an individual rather than a household; this being particularly relevant where the perpetrator is a member of a tenant's family rather than the tenant themselves. At least in its interim form, an ASBO also has the advantage of flexibility in that it can be quickly obtained.

6.12 To the extent that ASBOs provide an alternative mechanism for LAs and RSLs seeking to counter ASB committed by their own tenants, it might be expected that the growing use of ASBOs would be reflected in declining numbers of possession actions. While we cannot be certain about causality, the trends shown in Figure 6.4 seem at least consistent with this hypothesis. ASB-triggered eviction actions have reduced by more than half over the past four years, inversely paralleling the rise in ASBO applications.

6.13 The number of ASB-triggered legal actions leading to actual eviction, however, has remained relatively stable over recent years (see Table 6.3). Hence, it would appear that while far fewer ASB-triggered actions were being initiated by LAs in 2005/06 than in the recent past, the chances of any action leading to actual eviction were much increased. This implies that eviction proceedings are being used less as a warning signal than was previously the case and/or only the most serious cases are now being addressed through possession action.

Table 6.3. Trends in ASB-triggered LA eviction actions and evictions undertaken, 2001/02-2005/06

Source: Scottish Executive Housing Trends statistics (various editions).

6.14 It is clear from case study and other evidence that ASBOs and eviction proceedings sometimes run in tandem. It has been suggested that where ASBO breaches are concerned:

'Eviction is a more likely sanction than imprisonment…In practice… local authorities may use ASBOs and techniques of surveillance and investigation primarily as a way of guaranteeing a swifter and surer eviction…an accepted way to demonstrate that eviction is justified'²⁶.

6.15 The survey results show that in 11 of the 69 social landlord ASB-triggered evictions in 2005/06, breach of ASBO conditions was a factor leading to this outcome. This seems to indicate a relatively limited amount of linkage between the two processes.

6.16 Similarly, the case file review exercise undertaken as part of this research found that only five of 50 'breached ASBO' cases resulted in eviction proceedings (4) or the conversion of a tenancy to SSST status (1) (see below). Again, these findings suggest that the inter-linkage between ASBO action and eviction proceedings is very limited. While evidence that ASBO terms have been breached may constitute 'useful' evidence to support an eviction action, it does not appear that such evidence is very frequently used for this purpose.

Scottish Short Secure Tenancies

6.17 Under the Housing (Scotland) Act 2001, social landlords are empowered to 'demote' the security of a tenant subject to an ASBO (or where a member of a tenant's household is subject to an ASBO). This involves the conversion of a Scottish Secure Tenancy ( SST) into a Short Scottish Secure Tenancy ( SSST). Similarly, landlords re-housing persons subject to ASBOs, or who had previously been evicted for ASB, may institute a tenancy on SSST terms in instances where the tenant has been evicted for ASB within the previous three years. SSSTs make it easier for a social landlord to repossess a property because the tenant's security of tenure is weakened. Unless a landlord serves notice for the recovery of possession on the tenant in the meantime, an SSST reverts to fully secure ( SST) status after 12 months.

6.18 14 LAs used the power to demote tenants to SSST status in 2005/06. However, the frequency of such actions remained very small: 43 SSST conversions across the whole of Scotland. Given that 79 per cent of perpetrators subject to ASBOs are social sector tenants (see Chapter 2), this could be seen as a surprisingly low figure. 79 per cent of ASBOs granted across Scotland in 2005/06 equates to a notional 224 cases that could have been subject to tenancy conversion. In practice, however, only 43 such conversions were recorded. This seems to suggest that such action is far from routine for many LAs and RSLs active in obtaining ASBOs.

Table 6.4. Landlord Local Authorities - use of SSST powers in 2005/06

Source:DTZ survey

6.19 One reason for the relatively small numbers of tenancy conversions may the practice in some LAs of making use of tenancy conversion powers only when a tenant subject to ASBO breaches an Order's terms. Hence, rather than downgrading a tenant's security routinely once an ASBO is granted, the council (or RSL) does not act in this way until the tenant commits prohibited acts. In Fife, for example, tenancy conversion to SSST is enacted only when an initial ASBO breach takes place, with the tenancy being terminated upon any further breach.

6.20 16 tenancies established on SSST terms due to ASB were recorded as having been terminated by LAs during 2005/06 (see Table 6.4). This may be appropriately set against the number of ASB-triggered evictions recorded in that year. As already noted above, 69 such evictions were instituted by LAs and RSLs during the year, of which 11 were implemented in part due to breach of ASBO.

6.21 The termination of a demoted tenancy produces the same end result as eviction from a secure tenancy. Hence, it would be appropriate to state that ASB-triggered tenancy terminations in social rented housing in 2005/06 totalled 85, with 25 of these being linked with ASBOs. This latter figure should perhaps be seen within the context of the total number of ASBOs granted in 2005/06 - 279. This suggests that for approximately one case in ten, an ASBO results in the loss of a social rented tenancy.

6.22 One of the implications of this analysis is that it could be misleading to view the official Scottish Executive statistics on ASB evictions other than in the context of the numbers of SSSTs being terminated. The latter statistic is, however, not included within the Executive's routine monitoring of LA (or RSL) housing management activity. We would see it as important for the existing framework to be expanded to monitor SSST activity: at the very least that aspect of SSST activity that involves the termination of such arrangements.

Summary of main findings

• A range of other enforcement-style response may be used by LAs and RSLs prior to, alongside, and following on from ASBO applications.
• Acceptable Behaviour Contracts ( ABCs) are being used increasingly widely as a means of tackling ASB mainly on the part of young people (i.e. those aged 21 and under). In only a small proportion of ASBO cases, however, are ABCs used as a precursor to ASBO action.
• Similarly, very few ASBO applications follow on from unsuccessful attempts at mediation.
• ASB-triggered eviction actions have been declining in recent years, possibly, in part, as a consequence of the availability of ASBOs as an 'alternative response' to ASB involving social renting households.
• While the scale of its use remains modest, tenancy conversion to SSST for social renters subject to ASBOs is becoming more common. The termination of demoted tenancies is appropriately seen as analogous to ASB-triggered eviction.
• Nationally, social renters having their homes repossessed in connection with ASBO actions account for around one ASBO action in ten.

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