THE CLOSURE ORDER IN PRACTICE
I sincerely believe that the Closure Order is one of the more powerful and effective tools in the ASB toolkit. At this point, I hope you’re nodding along with me emphatically. If you’re not, can I be so bold as to suggest that perhaps your local arrangements are not working as well for you as they should, and things may need reviewing? If this is the case, read on as the content below might help you develop the way in which the tool is used in your local area.
Why do I hold the closure powers with such regard? Often used for the most serious, harmful and persistent cases, they are quick, they are impactive and they get the job done. They are also visual, meaning they are a great reassurance to the local community, increasing trust and confidence in the community safety partners.
Yet they can also present some challenges, which may be some of the reason why you haven’t experienced the true benefit of them as yet. They require real partnership working and there can sometimes be problems in terms of evidence gathering, policing and longer-term solutions. This blog will share with you some of these challenges, as well as the possible solutions, to make sure you can also benefit from having this incredibly effective tool in your arsenal.
Make sure you understand the breadth of ways in which it can be used
I deliver training on the closure order and perhaps the most common example given, when I ask practitioners to give me examples of how the power can be used, is for a residential property that is being used as a drug den. If this is the image that automatically comes to your mind then I would urge you to have a look at the ASB, Crime and Policing Act 2014 (where the power arises) and read the definition of ‘premises’. It helpfully tells us that the term covers all residential properties. non-residential properties, including licensed premises and even open spaces.
In addition, the order itself can be incredibly flexible in terms, allowing you to limit categories of person to which it applies, make the terms time-restricted, or select certain areas of a premises that the terms relate. It is by doing this that we have created the concept of a ‘partial closure order’; essentially the order does not apply to everybody or in every area or for all of the time.
These partial orders are being used to great effect particularly to support vulnerable victims. By victims, in this instance, I mean the community who are suffering from the harm, as well as the occupiers of an address. Cuckooing has become an increasing problem – criminals exploiting vulnerable people and using their properties for illegal or immoral purposes. Partial orders can be put in place, allowing the occupiers to remain (ensuring a vulnerable person doesn’t become more homeless) and keeping the perpetrators away, bringing respite to the community.
Using the tool in a flexible way also allows it to be used on communal areas of a tower block, perhaps where visitors are using corridors to take or deal drugs, causing much nuisance and intimidation to the residents. The order can specify the areas and categories of people it applies to. Or car parks that are subject to ASB during the evening, with the order outlining the times of day the closure order applies.
The closure order replaced the previous crackhouse closure and premises closure order. One of the main differences was the ability to use this newer power proactively. Previously, there had to have been an incident satisfying the legal test within the three months leading up to the case being issued. Now the powers can be used as a way of preventing a problem from occurring in the first place, something that can be really useful where there is intelligence (such as social media posts) to say that a large scale illegal event is likely to take place.
Think about how best to present your evidence
Securing first-hand evidence from victims in closure order cases can be difficult. The fact that such a tool is deemed a proportionate and necessary response tells us that the problems must be very serious and/or persistent and harmful. Residents are likely to be fearful and intimidated, unlikely to want to attend Court and give evidence.
A common misconception of closure orders is that they are a criminal tool. After all, they are applied for in the Magistrates Court. In fact, they are civil proceedings and because of that, the civil rules of hearsay evidence apply, as well as the civil standard of proof.
What this means in practice is that the evidence of the residents can be presented as hearsay. Interviews with them can be included in the applicant’s statement, with their names withheld if required. I have also seen organisations using anonymous questionnaires as a way of gathering information from the community, in a way that feels safe for them to do. These questionnaires are then exhibited to the applicant’s witness statement, helping to show the impact and community harm.
With the type of behaviour often used to secure closure orders, it is likely that the Police and other professionals will have evidence that satisfies the test for the power. This evidence combined with the residents’ information (even in hearsay form) is often enough to secure an order.
The links to registered providers
Registered Providers (housing associations) can not use the power themselves, often a source of great frustration. This oversight is perceived by many (myself included) as somewhat perverse. They own the property so why not allow this control over it? The types of vulnerable people who are housed in social housing may be likely to be those most at risk of exploitation for the purpose of Cuckooing or other criminal activity.
However, whilst the housing provider cannot apply for a closure order, they can use the absolute ground for possession. A condition under the absolute ground is a Closure Order being secured at the property. Whilst possession could be gained without a Closure Order in place, it would likely be under the discretionary ground for possession, meaning that it would take longer and cost a lot more, both in terms of money and the community suffering.
In my mind, the closure order is an almost perfect example of partnership working. The housing provider does not have the authority to seek the order, yet the local authority or police (who do have the power) cannot use the absolute ground for possession. Both have to bring something to the table to achieve the best possible outcome.
It is absolutely key that there is local understanding about how closure orders will be used where a property is owned by a registered provider, with each knowing the role that they need to play and the timescales that they must work towards.
As briefly mentioned above, the closure order can only be in place for a maximum period of 6 months. This means that it brings temporary respite only. In most instances, thought must be given to what other action will be taken in order to bring a long-term change. If the property is rented (either through social housing or a private arrangement), the longer-term solution may be possession; if it is owned then it may require an injunction or criminal behaviour order, depending on the facts and circumstances.
Of course, we do find ourselves in the midst of a global pandemic, where restrictions are only just being lifted in relation to possession action against tenants. Even with the best processes and will, possession may not be possible within the 6-month timescale. It may therefore be that we need to look at injunctions as a way of controlling behaving, in lieu of what may be our usual choice of seeking eviction.
What is clear is that the closure order is being used creatively and to great effect. It is a quick and relatively cheap way of making a true difference in tackling serious ASB and criminality and protecting communities that are experiencing real harm. Make sure you understand the ways in which this can be achieved!
This blog was originally produced for the Riams Communities ASB forum, an on-line platform that practitioners can use to ask questions and share best practice. Details of how to access this free service can be found here: https://communities.riams.org/128/anti-social-behaviour/blog/776