ASB: A 10 YEAR CHALLENGE
As we enter a new decade, you will have noticed the #10yearchallenge hashtag, which has swept across social media platforms. The concept is simple: post a profile picture from when we entered the 2010s next to one as we move into a new decade. Cue panic to find the worst picture from 2009 to allow yourself to be favourably compared to your best photo from 2019!
This got me thinking about what the ten-year challenge would look like for ASB; where were we in 2009 compared to where we are today?
The first, and probably most obvious, observation is that we had an entirely different legal toolkit. Before the ASB, Crime and Policing Act 2014, we had various different pieces of legislation, containing various different legal tools to tackle ASB. The purpose of the overhaul was to simplify the toolkit and make it quicker and easier to take action.
We often analyse at length what doesn’t work in terms of the tools and powers, but there are some real positive changes arising from the new legislation, which have made it easier for practitioners to resolve cases of ASB.
Before the Part 1 Injunction, we had two standalone tools for addressing the behaviour of individuals. These were the Housing Act Injunction and the ASBO. The first of these was a tool for housing providers only, to be used where there was a housing management link. The ASBO was, therefore, the tool that could be used to deal with ASB occurring in the private rented sector.
The significant difference was the standards of proof required: the injunction being the civil standard and the ASBO being the criminal standard. Put frankly, the behaviour and harm being caused could be exactly the same, but if you were a social housing tenant it would be much easier and quicker to put a legal order in place to protect you.
The newer injunction puts right this inequality by ensuring that the difference in legal test does not relate to who the person is that is being harmed, rather where the behaviour is taking place.
The closure order that we have now is a second-generation crack-house closure/premises closure order that we had in previous legislation. There are however some notable differences. For both these powers there had to have been an incident occurring within three months of the application being made to court; the closure order replacing these powers allows an application to be made where there is evidence to suggest that disorder is going to take place (such as intelligence to suggest an illegal rave at a disused factory). We can effectively close the premises down before the harm has even been caused.
We are also fairly well versed now in the potential to use the closure order to protect vulnerable people. The order can be made on a partial basis, meaning that the tenant can remain in their home yet ensuring that all other negative influences are banned from attending the address.
There was great concern when the absolute ground for possession was announced that it was a case of something sounding too good to be true, given that we were still working out the implications of the Manchester City Council v Pinnock case and those that followed, and the ramifications of defendants raising human rights or equality act challenges in cases where possession would ordinarily be all but guaranteed. We were also concerned that judges may become reticent to grant Part 1 injunctions, believing that doing so would light the touch paper for eviction under the absolute ground.
Whilst we must, of course, continue to use the absolute ground in a measured fashion, offering appeal routes for tenants and competing robust proportionality assessments, neither of the above concerns has borne out to any real degree.
There also appears to be some changes in the trends for using the informal tools commonly associated with ASB resolution. Ten years ago, I worked for a council which had a highly effective, and relatively simple, acceptable behaviour contract (ABC) process. All partners could feed information into a partnership database, joint letters would be created, cases would be escalated in a timely manner, the early help service was involved in all ABCs that were created and enforcement action was taken where necessary. In fact, a very small number of cases went to legal action, given the robust, holistic and structured approach of the earlier stages of the process.
Fast forward ten years and the number of ABCs I see being used has reduced significantly. In addition, the partnership processes that we used to see work so well have been mostly disbanded. This reduction in use of the ABC appears to correlate with the reduction of neighbourhood police officers, community wardens and council ASB officers.
Unfortunately, the consequence of these decisions can be felt in ASB casework. The main issue is that cases have a tendency to float around for months, sometimes years. These are the cases where warning letters and meetings have not successfully resolved the issue, yet it is felt (sometimes wrongly) that there is not enough evidence available to take legal action. What the ABC offers is a middle ground tool that shows a perpetrator that the severity of a situation is escalating and provides practitioners with a structured way of putting boundaries and support in place.
Finally, back in 2009, we were still recovering from the devastation at the death of Fiona and Francesca Pilkington, and the implications on ASB practice arising from the serious case review recommendations. It was this case that changed the way we did things, refocussing our minds on the importance of taking a risk/harm-centred approach to ASB. It reinvigorated multi-agency meetings, ensuring they did not just consider the behaviour but also the harm, led to an almost universal introduction of risk assessment tools for victims and eventually led to the creation of the community trigger in the ASB Act of 2014.
As we move into the next decade, it is important that we continue to utilise the ASB toolkit to its fullest capability, reflecting back on things that have worked over the last ten years and how we may reintroduce these practices to the work that we do today. Above all else, we must ensure that we continue to keep the victims of ASB at the heart of our case management.