Short Scottish Secure Tenancies for antisocial behaviour and miscellaneous changes: statutory guidance for social landlords

4. Steps To Be Taken Before Offering A ShortSST/Converting An Existing SST To A Short SST On ‘Other Antisocial Behaviour’ Grounds

Examples of Antisocial Behaviour and Landlord Action to Resolve It

4.1 Landlords should consider whether either of the existing grounds for granting a short SST as a result of antisocial behaviour are satisfied before considering the use of a short SST on ‘other antisocial behaviour’ grounds. This is because the existing grounds may be factually established more easily. In summary, the existing grounds are where:

• A prospective or existing tenant or anyone who would live with them, is subject to an antisocial behaviour order^[20]; or

• An eviction order has been made against a prospective tenant (or any one of prospective joint tenants) by the courts in the previous 3 years because of their antisocial behaviour^[21].

4.2 Where neither of the existing antisocial behaviour grounds for giving a short SST are satisfied, landlords will need to consider all of the circumstances of the individual case when deciding whether it is appropriate to offer a prospective tenant a short SST, or convert an existing SST to a short SST on ‘other antisocial behaviour’ grounds. Landlords will have to balance the need to support the tenant, household member or visitor to change their behaviour and sustain the tenancy, with the impact the antisocial behaviour has had, or continues to have, on neighbours and others in the community.

4.3 Some examples of the type of behaviour that a landlord might consider is antisocial could include where a tenant, or someone living with or visiting them:

• Acts in an threatening, abusive or intimidating manner;
• Vandalises or damages another person’s property;
• Drinks or uses drugs which leads to rowdiness or causes trouble to neighbours;
• Carries or uses offensive weapons;
• Causes regular and serious noise nuisance.

4.4 For prospective tenants a landlord may become aware of a history of antisocial behaviour following background checks. Where the landlord is considering whether it would be appropriate to offer the prospective tenant a short SST on ‘other antisocial behaviour’ grounds, the landlord will want to gather any information available through Information Sharing Protocols from partner agencies such as the police or social work to establish, for example:

• Whether the behaviour is on-going or is likely to be repeated based on previous tenancy history;
• Whether there has been a positive change in the person’s behaviour;
• Whether the person is likely to require support as a result of their behaviour to successfully sustain a tenancy.

4.5 In addition, there are a range of other factors at paragraph 4.10 of this guidance which landlords should also consider before reaching a decision to offer a short SST on ‘other antisocial behaviour’ grounds.

4.6 Where an existing tenant acts antisocially, the landlord’s Antisocial Behaviour case management arrangements should be followed. The landlord should also ensure that they make it clear to the tenant the behaviour that must stop and the action that may be taken if it does not. This could include conversion to a short SST with a reduction in their tenancy rights and also potentially eviction action.

4.7 In cases where a landlord is considering converting an existing SST to a short SST on ‘other antisocial behaviour’ grounds, or offering a prospective tenant a short SST the landlord should have:

• reliable evidence of the antisocial behaviour;
• evidence of the steps taken to manage or resolve the antisocial behaviour; and
• considered what support may be required to manage or resolve the antisocial behaviour and assist in sustaining the tenancy.

4.8 Some examples of the steps taken by the landlord to manage or resolve the antisocial behaviour could include, communication and engagement with the tenant, issue of written warnings, Acceptable Behaviour Contracts/Agreements, consideration of support needs in consultation with the tenant and/or other partner agencies and the uptake of support offered.

4.9 It is likely that the landlord will have given at least one written warning to an existing tenant before a short SST on ‘other antisocial behaviour grounds’ is considered. The landlord will also have to be satisfied following their investigations into the antisocial behaviour, that a short SST on ‘other antisocial behaviour’ grounds is a reasonable step to take in any individual case.

Other Factors Which Landlords Should Consider

4.10 In reaching their decision to either offer a short SST or convert an existing SST to a short SST on ‘other antisocial behaviour’ grounds, there are also a range of other factors which landlords should consider. These could include:

• Who has behaved antisocially and their connection to the property;
• How long the antisocial behaviour has been going on and the persistence of the behaviour;
• The person affected by the antisocial behaviour and their connection to housing;
• Whether and to what extent the behaviour has affected household members, neighbours or others in the community;
• The impact on neighbours and communities over time and the impact on the stability of the community;
• What action, if any, the person behaving antisocially is taking to make positive change;
• Any issues around the vulnerability of the tenant, members of their household or those directly affected by the antisocial behaviour;
• Other steps which have been taken/which could be taken by the landlord or partner agencies to address the antisocial behaviour.

Who Has Behaved Antisocially and Their Connection to the Property

4.11 The new provisions cover the actions of a range of people including – the existing tenant (or any one of the existing joint tenants), members of the tenant’s household, lodgers, subtenants and visitors to the house. For new tenancies the new provisions cover the actions of the prospective tenant, a person visiting a house occupied by the prospective tenant or by a person who it is proposed will reside with the prospective tenant.

4.12 In some cases it may, for example, be a visitor to the house, an abusive partner/ex-partner, or someone who lives at the property from time to time who has been behaving in an antisocial manner. In such cases, landlords may have limited information from the tenant themselves about the connection that person has to the property and will be investigating this and determining what impact the antisocial behaviour has had on neighbours and the community. There will be situations where neighbours or others in the community are afraid to speak out and other cases where the tenant may be unable, despite their best efforts, to prevent the antisocial person returning to the property due to fears for their own safety. In deciding whether to offer or convert a tenancy to a short SST, the landlord will wish to consider factors such as:

• How frequently the person visits or lives at the property and the effect of the behaviour on neighbours;
• Any action the tenant is taking to stop the person returning to the property;
• Whether it is reasonable in the circumstances for the tenant to try to prevent the person returning to the property.

How Long the Antisocial Behaviour Has Been Going On

4.13 Landlords will need to consider how long the antisocial behaviour has been going on based on the individual circumstances of each case. There is no requirement for the antisocial behaviour to have been sustained over a specific period of time, however landlords can only consider instances of antisocial behaviour that have taken place up to 3 years previously. The law does not allow landlords to take into consideration antisocial behaviour that has taken place more than 3 years before the date the notice offering or converting a tenancy to a short SST is served.

The Person Affected by the Antisocial Behaviour and Their Connection to Housing

4.14 A short SST on ‘other antisocial behaviour’ grounds can only be used where –

• in the case of offering a tenancy to a prospective tenant, the antisocial behaviour is related to another person residing in, visiting or otherwise engaged in lawful activity in the locality of a house occupied by the prospective tenant or by a person who it is proposed will reside with the prospective tenant; or
• in the case of a conversion of an existing tenancy, the antisocial behaviour is related to another person residing in, visiting, or otherwise engaged in lawful activity in the locality of a house occupied by the person who has acted antisocially.

4.15 The person affected by the antisocial behaviour must have some connection to the relevant property. This means by residing in, visiting or carrying out activity in the locality of it. As a result of this it is likely that the antisocial behaviour will either be committed in the house or committed in the locality of the house. A landlord can look back over the 3 year period and consider behaviour towards persons, connected to a house occupied at any point during that period by the relevant person, for example, in the case of an existing tenant this would cover their current or previous accommodation. This does not have to be social housing and could, for example, be privately rented or owner-occupied accommodation.

4.16 Where the antisocial behaviour was committed in relation to people unconnected to the relevant property, landlords cannot use the ‘other antisocial behaviour’ ground covered in this guidance to offer or convert a tenancy to a short SST. Landlords will instead need to consider using one of the other grounds in schedule 6 of the 2001 Act if they wish to use a short SST.

4.17 As an example, where a tenant is under the influence of alcohol and abusive in a public place towards members of the public, but conducts themselves well in relation to persons in their home and its vicinity, the ‘other antisocial behaviour’ ground for converting the tenancy to a short SST would not be met.

Whether and to What Extent the Behaviour Has Affected Household Members, Neighbours or Others in the Community

4.18 A key consideration when deciding whether to give a short SST on general antisocial behaviour grounds is whether the antisocial behaviour in question has had a detrimental impact on household members, neighbours or others in the community. Landlords will need to take a view on this based on all of the circumstances of the individual case.

4.19 Some examples of this could include:

• Where someone’s frequent misuse of alcohol results in, for example, regular abuse of neighbours, excessive noise and damage to common property;
• Threatening and abusive behaviour towards neighbours or behaviour that causes significant disruption to their lives.

Positive Change

4.20 Following a period of antisocial behaviour, some people will make genuine efforts to resolve their behaviour and this process may be affected by taking action to remove some of their tenancy rights. The antisocial behaviour in question may have been committed a number of months, or even years previously. Landlords will not want to offer a short SST or convert a tenancy to a short SST where they consider that the behaviour has improved sufficiently and has been sustained over a period of time which they consider to be reasonable.

4.21 Some examples of where someone may be trying to make positive change could include:

• Regular and meaningful engagement with support organisations, for example on behavioural management issues;
• Taking part in a rehabilitation programme, for example a drug, alcohol or health treatment programme;
• The behaviour has stopped, and there have been no further, disturbances or complaints.

These examples may indicate positive change and landlords should consider the impact that giving or converting a tenancy to a short SST may have on preventing on-going positive change.

Vulnerabilities

4.22 Landlords should ensure that all tenants are aware that a breach of tenancy conditions as a result of antisocial behaviour may result in the loss of some of their tenancy rights. Landlords will wish to give particularly careful attention to the use of a short SST on ‘other antisocial behaviour’ grounds in cases where the tenant or a member of their household is vulnerable as a result of mental illness, physical or learning disability, poor health or frailty, or for any other similar reason. This should however be balanced against the impact of the antisocial behaviour on the wellbeing and stability of neighbours and others in the local community. It is likely that landlords will want to be involved in joint case conferences with relevant support agencies in such cases. The use of a short SST with appropriate support may be a useful measure in some cases, to prevent the need for eviction action at a later stage.

Other Steps to Address the Antisocial Behaviour

4.23 As part of their decision making, landlords should also consider any other measures which may have been taken by the landlord and/or partner agencies to address the behaviour and the impact this has had on the behaviour. Landlords will also want to consider whether there are any other options as an alternative to offering or giving a short SST which would resolve the behaviour, while balancing the rights of the individual tenant and their household against those of neighbours and others in the community and the impact the behaviour is having on them.

4.24 Depending on the circumstances of the individual case, some examples of alternative options to a short SST could include, provision of different types of support, the issue of a written warning, an Acceptable Behaviour Contract/Agreement or an ASBO.