Getting ready for October 2014 The new ASB tools and powers: the key facts and tests

Key points Part of the government's ‘putting victims first’ agenda Focusing on the risk of harm and how to reduce it Importance of good case management; the use of non-statutory interventions; risk assessment and keeping in regular contact with victims to keep them updated, informed and involved Powers are simplified and can be used to address more than one type of ASB Working in partnership and participating in community safety partnerships even more important for housing providers and their ASB practitioners

Civil injunction Purpose By A civil power to deal with anti-social individuals emphasising fast and effective protection for victims and communities; a clear standard of behaviour for perpetrators and preventing behaviour from escalating Local authorities Police Registered providers British Transport Police Transport for London NHS Protect Environment Agency Natural Resources Wales

Test Based on the civil burden of proof; the balance of probabilities Behaviour likely to cause harassment, alarm or distress (non-housing related ASB); or Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or Conduct capable of causing housing-related nuisance or annoyance to any person, and It is just and convenient to grant the injunction to prevent ASB

Key facts Will be issued by the county court for over-18s and the youth court for 10-to-17-year-olds with mixed age cases heard in the youth court Will include prohibitions and can also include positive requirements to address the underlying causes of the behaviour Breach of the injunction for over-18s is civil contempt of court with unlimited fine or up to two years in prison and for under-18s a supervision order or, as a very last resort, a civil detention order of up to three months for 14-to-17-year-olds only Can be used where perpetrators who are not tenants of the housing provider who is applying for the order Can be used where the perpetrator has allowed another person to engage in ASB, as opposed to actively engaging in such behaviour themselves The court may exclude a perpetrator over the age of 18 from any premises or an area specified within the terms of the injunction The court can attach a power of arrest to any prohibition or requirement in the injunction, except a positive requirement to participate in a particular activity if: The ASB the respondent has engaged, or threatens to engage, in consists of or includes the use, or threatened use, of violence against other persons; or There is a significant risk of harm to other persons from the respondent

Absolute grounds for possession Purpose By Intended to expedite the eviction of the most anti-social tenants; to bring faster relief to victims and for use with secure and assured tenancies by both social landlords and private rented sector landlords Registered providers Private landlords

Test The tenant, a member of the tenant’s household, or a person visiting the property has met one of the following conditions: Convicted of a serious offence (specified in Schedule 2A to the Housing Act 1985) Found by a court to have breached a civil injunction Convicted for breaching a CBO Convicted for breaching a noise abatement notice; or The tenant’s property has been closed for more than 48 hours under a closure order for ASB

Key facts The offence or breach has to occur in the locality of the property, have affected a person with a right to live in the locality or affected the landlord, its staff or its contractors Notices are valid for 12 months and must include: The landlord’s intention to seek possession using an absolute ground Reasons why they are seeking possession Which of the five conditions and the relevant conviction, finding of the court, or Closure Order the landlord will rely on Details of any right to request a review of the landlord’s decision and the timescale to make a request Where and how a tenant can get advice The date after which possession proceedings may be begun Secure tenants of local housing authorities will have a statutory right to request a review of the landlord’s decision to seek possession. Registered providers are encouraged to use the same process or a process they may already be using for S.21 and probationary tenancy reviews Where the test is met, the court must grant a possession order where the correct procedure has been followed and subject to any human rights defence including proportionality

Community protection notice Purpose By Intended to target those responsible for specific, ongoing problems or nuisance which negatively affects quality of life in a community; put right any impact and prevent it happening again without the need for long-term legal action (eg, civil injunction) Local authorities Police Registered providers designated by local authorities

Test Behaviour has to: Have a detrimental effect on the quality of life of those in the locality Be of a persistent or continuing nature Be unreasonable

Key facts Before a CPN can be issued a written warning must be given to the individual, aged 16 and over, or business informing them of problem behaviour, requesting them to stop, and the consequences of continuing If the problem behaviour continues a CPN can be issued including requirements to stop things, do things or take reasonable steps to avoid further ASB Local authorities are able to carry out works in default: Where the work is on land ‘open to the air’ the local authority or their agent can do the work without the consent of the owner or occupier Where work is indoors permission of the owner or occupier is required the local authority has to specify the work and the estimated cost On completion the local authority should give the perpetrator details of the work and the final amount payable which should be no more than is necessary to restore the land to the standard specified in the notice including officer time, use of equipment and administration costs Breach of a CPN is a criminal offence resulting in: A fixed penalty notice (FPN) can be issued of up to £100 if appropriate A fine of up to level 4 for individuals, or £20,000 for businesses On conviction the prosecuting authority may ask the court to impose a remedial order and/or a forfeiture order

Community trigger Purpose By Local authorities Police Gives victims, whether individuals, businesses or community groups or someone acting on their behalf, the right to request a review of their ASB case and bring agencies together to take a joined-up, problem-solving approach to finding a solution Agencies have a duty to undertake a case review when the case meets a locally defined threshold. In deciding whether the threshold is met agencies should consider the cumulative effect of the ASB and the vulnerability of the victims as well as the threshold and the legal definition Local authorities Police Clinical Commissioning Groups (England) Local health boards (Wales) Co-opted registered providers

Test A threshold to be defined by the local agencies but not one that is more than three complaints in the previous six-month period. The threshold may also take account of: The persistence of the ASB The harm or potential harm caused by the ASB The adequacy of response to the ASB

Public spaces protection orders Purpose By Intended to deal with a particular nuisance or problem in a specified area that is detrimental to the local community’s qualify of life by imposing conditions on the use of that area which apply to everyone Local authorities

The behaviour being restricted has to: Test The behaviour being restricted has to: Be having, or be likely to have, a detrimental effect on the quality of life of those in the locality Be persistent or continuing nature; and Be unreasonable

Key facts The PSPO can be drafted from scratch based on the individual issues being faced in a particular public space Restrictions and requirements are set by the local authority which may be fully inclusive or targeted against certain behaviours by certain groups at certain times Short-term PSPOs could be used where it is not certain that restrictions will have the desired effect The definition of public space is wide and includes any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission (eg, a shopping centre) They can be enforced by a police officer, police community support officers and local authority officers Before making a PSPO, the local authority must consult with the local police and the Police and Crime Commissioner and whatever community representatives they think appropriate If a new issue arises in an area where a PSPO is in force, the local authority can vary the terms of the order at any time Breach is a criminal offence: Fixed Penalty Notice or fine on prosecution and conviction

Closure notice and closure order Purpose By A fast, flexible power that can be used to protect victims and communities and to close premises which are being used, or likely to be used, to commit nuisance or disorder Local authorities Police

Test Behaviour that has occurred, or will occur, if the closure power is not used: Closure notice (up to 48 hours): Nuisance to the public; or Disorder near the premises Closure order (up to six months): Disorderly, offensive or criminal behaviour Serious nuisance to the public; or

Key facts A closure notice is issued out of court in the first instance and can close premises for up to 48 hours but cannot stop an owner or those who habitually live there accessing the premises Before issuing a notice the police or local authority must ensure that they consult with anyone they think appropriate Within 48 hours of the notice an application must be heard in magistrates’ court if a closure order of up to three months is required. An order can be extended to six months Both the notice and the order can cover any land or any other place, whether enclosed or not including residential, business, non-business and licensed premises The court can order the notice to stay in force for a further 48 hours if satisfied this meets the closure test required for a notice Breach is a criminal offence

Criminal behaviour order Purpose By Available on conviction for any criminal offence in any criminal court to deal with the long-term behaviour of the most serious and persistent offenders Crown Prosecution Service Local authorities

Test If the court is satisfied beyond reasonable doubt that the offender has engaged in behaviour that has caused or is likely to cause harassment, alarm or distress to any person The court considers that making the order will help prevent the offender from engaging in such behaviour

Key facts They can be issued by any criminal court for any criminal offence Evidence not heard in the criminal case can be heard at the CBO hearing including evidence of other ASB by the offender and information about why an order is appropriate in the terms requested A CBO will include prohibitions to stop the ASB and can also include positive requirements to help the offender to address the underlying causes of their behaviour Agencies must consult the youth offending team for under-18s Breach of the order is a criminal offence Requirements should aim to tackle the underlying cause of the ASB and be tailored to the specific needs of each offender

Dispersal power Purpose By Used to disperse anti-social individuals before their behaviour escalates and provide immediate short-term respite to a local community Police

Test Contributing or likely to contribute to members of the public in the locality being harassed, alarmed or distressed (or the occurrence of crime and disorder) Direction necessary to remove or reduce the likelihood of the ASB, crime or disorder

Key facts Lasting up to 48 hours, use of the power must be authorised by a police inspector be given in writing specifying the area affected and can specify the time and the route to leave by Police can confiscate any item that could be used to commit ASB, crime or disorder A direction can be given to anyone who is, or appears to be, over the age of 10 A person who is under 16 and given a direction can be taken home or to a place of safety Breach is a criminal offence: Failure to comply with a direction to leave: up to a level 4 fine and/or up to three months in prison although under 18s cannot be imprisoned Failure to hand over items: up to a level 2 fine A person who is given a direction and feels they have been incorrectly dealt with should speak to the duty inspector at the local police station There is no longer a requirement for the police officer or PCSO to definitively establish the person’s age as the new power is available if the person appears to be aged 10 or over

Community remedy Purpose By Police Will become part of the existing process for delivering community resolutions giving victims of low-level crime and ASB a say in the punishment of perpetrators out of court. It may also be used when a conditional caution or youth conditional caution is given to consult the victim on options to be attached to the caution Police A person authorised by a relevant prosecutor for conditional cautions or youth conditional cautions

Test The police officer; designated police community support officer or investigating officer must have evidence that the person has engaged in ASB or committed an offence The person must admit to the behaviour or the offence (and agree to participate) The officer must think that the evidence is enough for court proceedings including for a civil injunction, or impose a caution, but considers that a community resolution would be more appropriate

Key facts Each action must include these elements: Punitive element: reflecting the effects on the victim and the wider community; or Reparative element: achieving appropriate restitution/reparation to the victim; or Rehabilitative element: helping to address the causes of the perpetrator’s behaviour; or A combination of these.  Examples of potential actions include:  Mediation (for example, to resolve a neighbour dispute) A written or verbal apology The perpetrator signing an acceptable behaviour contract, where they agree not to behave anti-socially in the future, or face more formal consequences Take part in a restorative justice activity such as a neighbourhood justice panel Paying an appropriate amount for damage to be repaired or stolen property to be replaced Participation in structured activities that are either educational or rehabilitative, funded by the PCC as part of their efforts to reduce crime; or Reparation to the community (eg, doing local unpaid work for a short period)

What questions do housing providers need to be asking themselves and others? Are you able to assess the wider harm of the ASB that may lead to a civil injunction through a risk assessment process, community harm statements and partnership working such as Anti Social Behaviour Risk Assessment Conferences? Do you have a specific process in place to assess the proportionality and reasonableness in seeking a civil injunction, the power of arrest or exclusion? Have you considered the types of positive requirements you may include in civil injunctions and ensured they will not unnecessarily set respondents up to fail? Are you open to seeking civil injunctions where the perpetrator is not your tenant or where the respondent has allowed rather than caused the ASB? Are you prepared for working with youth offending teams and in the youth court to seek civil injunctions for under-18s? Are you making the best use of hearsay evidence to protect victims and witnesses? Will circumstances arise where you will want to use the new absolute powers for possession; is it something your organisation will consider; are review processes already established or need to be established and are you able to assess the reasonableness and proportionality of your actions?

What questions do housing providers need to be asking themselves and others? Have you decided with residents, your board/members, your community safety partners and staff whether to use CPNs if offered the opportunity? Have you decided where to seek designation from local authorities in the communities where you work? Are you aware of and able to achieve the local authorities' standards for designation or accreditation and the arrangements around the use of fixed penalty notices, early payment discounts and recovery of unpaid notices? How will you be consulting potential victims and the community about the use of a CPN and what should be included in it? Are staff able to distinguish what is unreasonable in fact from the judgement of opinion of those who feel affected by it and the ability of the perpetrator to control and or affect the behaviour?

What questions do housing providers need to be asking themselves and others? Are you, your residents, your board/members, and your staff familiar with the community trigger threshold and how it will operate in the areas where you work and are you a participating responsible body in any or all of these areas? Have hate incidents been included in thresholds and are your policies, procedures and skills up to date in this area of work? If you are not one of the responsible bodies in an area where you work do you have a mechanism to be engaged in any reviews that involve your housing management function? Are there existing groups (eg, Anti Social Behaviour Risk Assessment Conferences) that can take on the role of reviewing community trigger cases and are you adequately involved in these groups? Are staff able to explain the community trigger threshold, definition and overall purpose to residents, your board/members, partners and other staff not directly involved in managing ASB? Are you covered by fit-for-purpose information-sharing protocols in the localities where you may be expected to participate in community trigger reviews?

What questions do housing providers need to be asking themselves and others? As part of your discussions with local authorities about involvement in the use of other powers have you considered the role of PSPOs; the review of existing orders that will become PSPOs; areas or behaviours you feel PSPOs could address and the potential for future PSPOs? Are you in the thoughts of local authorities where you work as a community organisation to consult on the introduction, review or variation of PSPOs? Will you be using a potential PSPO as an opportunity to pull together partners and residents to resolve specific issues; with or without a PSPO? Are you supporting the police and local authorities to obtain closure orders where this is in the best interest of immediate neighbours and the community as a whole including circumstances where you are responsible for the premises? Have you discussed with community safety partners and the Crown Prosecution Service circumstances where a CBO would support your residents; help to change the behaviour of one of your residents or help you to manage ASB more effectively? Will you be working with the police to take advantage of the dispersal power in specific areas to provide a rapid response to ASB?