Antisocial Behaviour etc. (Scotland) Act 2004: Part 7 - Antisocial Behaviour Notices: Guidance for Local Authorities

Annex 2: SANCTIONS FOR NON-COMPLIANCE WITH AN ANTISOCIAL BEHAVIOUR NOTICE

1. Options

Where a landlord has failed to comply with an antisocial behaviour notice, the local authority can:

• apply to the sheriff for an order as to rental income (a rent penalty)
• apply to the sheriff for a Management Control Order
• take action to tackle the antisocial behaviour and pursue the landlord for expenditure incurred in consequence of the landlord's failure

The authority can also refer the matter to the Procurator Fiscal for prosecution of the offence of failure to comply.

More detail on each of the sanctions that the local authority can pursue is given in the following sections. Where the authority refers the matter for criminal prosecution it is for the Procurator Fiscal to decide whether to proceed. The local authority will wish to consider carefully which of the options to pursue and, indeed, whether there is scope to work constructively with the landlord to obtain compliance before embarking on that route.

The local authority would need to assess reasonableness at each stage and be able to demonstrate to the sheriff that the requirement on the landlord was reasonable. In the case of a Management Control Order, it would also have to demonstrate that the order was necessary to enable the antisocial behaviour to be dealt with.

2. Sanction: Orders as to Rent Payable

Issue

Local authorities may apply to the Sheriff for an Order as to Rent Payable to be made in respect in respect of a property on which an Antisocial Behaviour Notice has been served.

It is essential that an ASBN has already been served by the local authority on the landlord.

In deciding whether an Order should be sought, officers should give careful consideration to the details of the case. Care should be taken to ensure that serving an Order as to Rent Payable is not seen by the tenant as a reward for antisocial behaviour.

In reaching a decision, officers may find it helpful to consider the following:

• the nature of the anti-social behaviour
• the parties involved in the behaviour
• whether an Order as to Rent Payable is likely to secure an improvement in the situation
• any external factors which may have contributed to an aggravation of the situation

If the Sheriff is satisfied that the landlord has not acted as required by the ASBN within the required time period and it would have been reasonable for him to have done so, he has the discretion to:

• Make an order that no rent or other payment be due from any occupant of the property
• Make any other order which he may consider necessary

Where the Sheriff makes an order, the local authority should ensure that copies are given to:

• Anyone who occupies the property that the order relates to
• Anyone who acts for the landlord in relation to the property

Appeals

The landlord is entitled to appeal against an Order as to Rent Payable.

This can be done by lodging an appeal to the Sheriff Principal within 21 days of the decision having been made.

In the event of an appeal, the landlord is obliged to inform the tenant that an appeal is taking place. Local authorities should seek to ensure that landlords are sufficiently informed as to their duties and responsibilities to their tenants in such circumstances.

The decision of the Sheriff Principal is final, and no further appeal is possible.

Revocation and suspension

Both the local authority and landlord are entitled to apply to the Sheriff for the order to be revoked or suspended for a fixed period of time. The Sheriff may choose to act as requested if the landlord has acted as instructed by the ASBN or if it would be unreasonable for the order to remain in effect.

If the order is revoked or suspended by the Sheriff, this will not make the tenant liable for any rent that would have been due had the order not been in force. This is because the order continues to have been valid for the period of time for which it was in force. It has not been appealed and was valid until revoked or suspended.

In the event of the order being suspended or revoked, all parties who were informed of its coming in to force should be informed.

3. Sanctions: Management Control Orders

The Management Control Order is the tool of last resort for local authorities, where it is desirable for the authority to take over responsibility for the tenancy in order to deal with the antisocial behaviour which led to the ASBN.

On the application of the local authority, the Sheriff may make a Management Control Order which transfers to the local authority the rights and obligations of the landlord under the tenancy or occupancy arrangement existing at the time of the order. The Order has effect for 12 months or such shorter period as the Sheriff may specify when making the Order.

Serving a Management Control Order

A Management Control Order may be granted by the Sheriff where:

• The landlord of a property has not acted as required by an ASBN within the given timescale
• It would have been reasonable for the landlord to have acted
• The order is necessary for the antisocial behaviour to be dealt with

When the Management Control Order is in force, the local authority has sole right to claim any rent or other income due on the property. Any sums paid to the landlord from whom management responsibility has been taken may be reclaimed from him by the local authority.

A Management Control Order is, in practice, an alternative to the rent penalty, as the authority would not want to take on the landlord role with no entitlement to receive rent. It demands a substantial resource input in terms of time and effort, and the local authority will not want to engage in this without some reasonable expectation that it will have the desired effect.

The focus of the Management Control Order is the landlord role in dealing with the antisocial behaviour identified in the antisocial behaviour notice. The local authority may take action in relation to that behaviour which is not dependent on having management control - for example, seeking an Antisocial Behaviour Order against the occupant concerned. The Management Control Order gives the opportunity, and the obligation, to take those other actions which the landlord should have taken but has not. The local authority should seek to coordinate the various types of action to maximise their combined effect.

Management responsibilities

The local authority's first priority under the Management Control Order should be to take management actions that reduce or eliminate the impact on the community of the antisocial behaviour specified in the notice. But it should also seek to change the situation so that the landlord will manage antisocial behaviour effectively when the property is returned to his control. Part of that change may lie in the action taken by the local authority in relation to the particular tenant. The authority should also act to ensure that the landlord has both the capacity to manage effectively - whether as a result of advice, training, or the engagement of an agent - and the intention to do so.

In taking on the role of the landlord in respect of a particular property, the local authority will be entitled to make use of all rights which would lie with the landlord under the tenancy or occupancy arrangement. These rights may include:

• To make necessary alterations, repairs or improvements to the property
• To legally terminate the tenancy
• To agree with the tenant to make amendments to the terms of the lease

The local authority may choose to have the property managed by an agent such as a registered social landlord ( RSL) or reputable private sector agent. This may be an appropriate arrangement if the local authority no longer has housing stock and a housing management function or the house is in an area that is distant from local authority stock. The decision whether to use an agent is up to the local authority. The costs incurred are allowable costs, but they must be reasonable and necessary and relate to the delegation of the management functions.

The local authority does not have the right to re-let the house, although if the landlord does so while the Order is in force, the local authority's rights relate to the new tenancy as they did to the old. If the property which is the subject of the Order consists of more than one tenancy or occupancy arrangement and one of these ends during the period of the Order, the landlord may grant a new tenancy or occupancy arrangement only with the local authority's agreement. This affords protection to the other tenants or occupants. All rights and obligations in relation to this new arrangement will lie with the authority.

The local authority's management of the house is for the purpose of dealing with the antisocial behaviour described in the antisocial behaviour notice. Since an order can run for up to 12 months, the local authority should ensure that the tenant has acceptable living conditions meeting at least minimum standards, including the Tolerable Standard and the repairing standard. This is likely to involve expenditure on routine maintenance and may also involve expenditure on improvements necessary to meet those minimum standards.

However, the local authority's involvement with the property is essentially short-term and it should not use the opportunity of the Management Control Order to raise the standard of the property beyond the minimum necessary without the landlord's consent. For example, it would be unreasonable for the local authority to carry out capital improvements as part of a wider mixed-tenure programme at the landlord's expense but without the landlord's agreement.

It should be noted that the property does not become part of the authority's housing stock, and legislation relating to social rented housing and the Scottish Secure Tenancy do not apply.

Incurring expenditure

Any expenditure made as a result of the local authority's management control of a property must be 'necessary and reasonable' for the purposes of the operation of the management control order, in terms of the relevant regulations ¹ . The nature of the expenditure which can be validly incurred in the exercise of a Management Control Order is specified by those regulations.

Permitted expenditure is that which relates to:

• the management of the tenancy, including through the use of an agent
• the collection of rent or other required payment from the tenant under the tenancy
• any legal or other action necessary to recover costs relating to the management of the tenancy or collecting payments due from the tenant under the tenancy
• meeting the landlord's repair and maintenance obligations (these obligations may be contractual and legal)

• work necessary to ensure the property meets the 'tolerable standard' ²
• any costs incurred with the consent of the landlord ³ of the property

No other forms of expenditure can be incurred.

In the event that the local authority makes a surplus in managing a property under a Management Control Order or earns interest on any sums held as a result of the Order, this should be repaid to the landlord of the property. Accounts must be kept for the property for the period the Order is in force. The landlord should be given the opportunity to inspect the accounts, check them, and make any copies he requires.

Recovering expenditure

The expenses incurred by the local authority in the exercise of the Order can only be reclaimed from the landlord if:

• the expenditure is greater than the income received from the let of the property
• the landlord has been given notice that the authority intends to recover the costs from him

The landlord of the property must be given notice in writing of the intention to recover the costs from him at least 14 days before the recovery process begins. This recovery of costs would follow the standard debt recovery process.

The local authority may recharge the cost of normal day-to-day management activities, whether it manages the house directly or through an agent. It should be able, if necessary, to demonstrate the reasonableness of such charges by reference, for example, to the management of its own houses, bearing in mind that the house which is the subject of the order is likely to involve a relatively high management input because of the antisocial behaviour.

In the event that the expenditure necessary in respect of the property exceeds the income received on it, the surplus costs should be recovered from the landlord as a debt. If necessary, the local authority should seek an inhibition on the property for the unpaid debt.

Notification

Where a Management Control Order is made, the local authority should inform:

• The person who was landlord of the property before the Order was made
• Anyone occupying the property
• Any known agent of the person who was landlord of the property prior to the making of the Order

If it is not possible for the local authority to notify these parties, it should be in a position to demonstrate that it was impracticable to do so.

Revocation or ending of Order

A Management Control Order may be revoked where either the relevant local authority or the person who was the landlord prior to the Order make an application to the Sheriff. The Order may be revoked where:

• the local authority or the landlord has taken the action required by the ASBN, or,
• it would be unreasonable for the Order to remain in effect

The landlord, tenant and any relevant agent of the property must be informed of the revocation of Management Control Order as soon as possible after the revocation.

Where the Order is revoked following an application to the Sheriff by the landlord, the landlord is under an obligation to inform the appropriate local authority officer and his tenant.

The landlord may have no wish to change but simply wait until the specific behaviour described in the ASBN has ceased, and then apply for the Management Control Order to be revoked. This may have implications for the way in which the local authority chooses to detail the behaviour and the actions required in the ASBN.

If the period specified in the Order ends without the Order having been revoked, the local authority's powers in relation to the house end and revert to the landlord. If there is good reason why the local authority needs further time to deal with the antisocial behaviour specified in the original ASBN it can apply to the Sheriff for a further Order.

The local authority may well decide to provide continuing support after the Management Control Order has ended, so that the improvement to the situation achieved by the intervention can be sustained in a positive way rather than simply by the threat of a further formal intervention.

4. Sanctions: Action by local authority at the landlord's expense

Where a landlord fails to comply with an antisocial behaviour notice, the local authority may take the steps that it deems necessary to deal with the antisocial behaviour described in the notice. They do not have to be the same steps as specified in the ASBN.

For example, if the landlord fails to provide information in support of an Antisocial Behaviour Order, the authority may have to employ a professional witness to gather the evidence instead.

Recovery of necessary local authority costs under an Antisocial Behaviour Notice

Local authorities may recover from the landlord expenditure on action that they consider is necessary to deal with the antisocial behaviour detailed in an ASBN served on a landlord, if the need for that action results from the landlord's failure to comply with the ASBN.

The relevant costs to the local authority may take the following forms:

• Staff costs
• Reasonable allocation of relevant overheads
• Other costs incurred by the local authority which are directly associated with dealing with the antisocial behaviour
• Payments for services provided by external providers

The landlord of a property will be liable for the local authority's expenditure, but only if the local authority has given written notice of the intention to take the steps concerned, both to the landlord and to any other person to whom a copy of the ASBN was given as required by the Act. The notice must contain:

• A statement that the local authority intends to recover expenditure from the landlord
• An estimate of the expenditure

The purpose of providing an estimate is to ensure that the landlord understands the implications of continued failure to comply with the ASBN, and to encourage a change of approach. The estimate is just that; it is not binding, although it should be made in good faith. Clearly, some actions may prove to be more or less costly than expected when they are put into effect. The amount recoverable from the landlord is the actual expenditure, not the estimate.

Local authorities should be aware that they may be required to demonstrate that the charges being made to the landlord are valid. This could be demonstrated through evidence that the expenditure would not have been required had it not been for the inaction of the landlord.

5. Sanctions: Criminal offence under Part 7 of the 2004 Act

It is an offence under Part 7 of the Antisocial Behaviour etc (Scotland) Act 2004 ⁴ for a landlord to fail to act as instructed by the terms of an ASBN served on him by the local authority.

It is recommended that local authority officers seek to engage closely with the Procurator Fiscal's Office in advance of any intention to prosecute on a particular case. A good relationship with the Fiscal's Office will allow for a good working process to be established, with a clear understanding of the requirements for prosecution, including, for example, the necessary level of evidence.