A proportionate alternative to possession - Acceptable Behaviour Contracts.

In recent years, the question of "proportionality" has increasingly been raised as a defence to possession proceedings.  Sarah Corrigan, an adviser with extensive experience in defending possession action, discusses the merits of acceptable behaviour contracts as an alternative to possession action and an effective method of dealing with antisocial behaviour. 

It is a clearly established principle that eviction should only ever be as a last resort; any action taken by a social landlord in relation to possession must be proportionate. This principle is both entrenched in legislation and affirmed by the European Court of Human Rights (Case of Kay and Others v. The United Kingdom – Application no. 37341/06).

Indeed, determining what is “proportionate” action can be difficult. However, statutory guidance and a developing body of case law have provided a wealth of information and direction for social landlords, advocates and courts to consider in deciding what is “proportionate”. For example, the NI Department for Communities in its statutory guidance on antisocial behaviour, (available from Housing Rights) states that while it is true that in some circumstances it will be appropriate and proportionate for a social landlord to seek an order an order for possession at the outset, wherever possible, alternative remedies should be exhausted before legal action starts e.g. mediation and Acceptable Behaviour Contracts.

Proportionality in housing possession cases

Arguably, the clearest examples of how the principle of “proportionality” is considered in possession cases can be found in cases involving antisocial behaviour.

The Housing (NI) Order 1983 entrenches a social landlord’s right to obtain possession of a property if

• there have been incidents of antisocial behaviour and
• is “reasonable” to take possession.

The court must be satisfied on the balance of probabilities that both elements of this two-stem legislative test are fulfilled. The second stem of the test embeds the consideration of proportionality.

As incidents of antisocial behaviour are on a spectrum and can range from occurrences of excessive noise, right through to serious criminal behaviour; considering both the severity and quantity of the incidents and the individual circumstances of the tenant and wider community, are essential in determining the second stem, or proportionality element, of this legislative test.

Dealing with antisocial behaviour

It often becomes apparent upon advising a client, or indeed during legal action, that while there have been incidents of antisocial behaviour, it is not “reasonable” to evict the tenant as there could be other, more proportionate remedies to resolving the issue that are tried prior to opting to take possession. While mediation can be an effective tool to resolving antisocial behaviour within the context of a neighbourhood dispute, often the creation of an Acceptable Behaviour Contract, (commonly known as an ABC), can prove to be an effective and proportionate alternative to possession which satisfies both parties.

Several government bodies, independent organisations, charities and foundations have conducted in-depth research on tackling antisocial behaviour.  All of the research arrives at the same conclusion, that in order to effectively tackle antisocial behaviour, the cause of the behaviour must be identified and dealt with, in order to stop the perpetuation of the antisocial behaviour cycle. A multi-disciplinary approach is often taken to achieve this.

Entering into an ABC, can allow the causes of the antisocial behaviour to be identified and allow support referrals to be made so that the cause is treated. ABCs also allow the tenant some time to demonstrate that they have moderated their behaviour.

Tailoring an acceptable behaviour contract 

While ABCs are an effective and proportionate method of dealing with antisocial behaviour, it is essential that these are tailored to the specifics of the case and the tenant and that the tenant and any representative is involved in the drafting of the document. 

Where an ABC is drafted unilaterally, it may impose terms on the tenant which are impossible to sustain, thereby dooming the entire exercise to failure. For this process to work as it should, advisers should endeavour to work with their clients and the social landlord involved drawing up specific individual terms.  These terms should address the landlord's concerns, but should also be clearly understand by the tenant and be of a nature with which the tenant can reasonably comply.