Scottish Government

A Report on the Consultation Responses to Putting Our Communities First: A Strategy for tackling Anti- Social Behaviour

9.4 Anti-social Behaviour and Housing

The consultation document states that anti-social behaviour is an issue across housing tenures. The Scottish Executive is considering measures to underline the responsibilities of social rented and private sector landlords in relation to anti-social behaviour. The document suggests placing a formal duty on registered social landlords to participate in the production and implementation of anti-social behaviour strategies. Although private landlords share a responsibility to play their part in tackling anti-social behaviour, and can seek to control unacceptable behaviour through advice, warning or sanctions including ultimately eviction, the document expresses concerns that some private landlords fail to take action to control anti-social behaviour by their tenants. It suggests that there may be a case for considering measures to require landlords to take more effective action. Such measures include further regulation of private landlords, and two options are proposed, or indeed a combination of these options. The first is for local authorities to have the power to require all privately let property in an area to be registered. The local authority would be empowered to withdraw or refuse registration (subject to appeal to the court) where landlords have failed to take action to control anti-social behaviour. The letting of unregistered properties would be illegal with criminal penalties. It would also be the case that no rental (including housing benefit) would be payable to an unregistered property. Local authorities would have a duty to re-house, or arrange for the re-housing of, any tenants displaced by enforcement action. The second option would give local authorities the power to take over the management of individual properties if landlords' action on anti-social behaviour was deemed insufficient, subject to an application to the court, with landlords given the right of representation. The court would decide appropriate sanctions which may include payment by the landlord of the local authority's costs in seeking an ASBO; the transfer of management control of the property to the local authority or its agent through a Management Control Order or prohibition of the letting of the property by the landlord with rental liability and Housing Benefit ceasing as a consequence.

The consultation document argues that measures are required that reward good behaviour and send clear messages to others to desist from anti-social behaviour. The document seeks views on extending the use of reward schemes for tenants. Finally, the Scottish Executive argues that links between housing legislation (the Housing (Scotland Act) 2001 and the Homelessness (Scotland) Act 2003) and ASBOs should apply in cases where an ASBO has been granted against a young person under-16. This legislation would enable a landlord to convert a Scottish Secure Tenancy to a short Scottish Secure Tenancy, with the landlord having the right to absolute possession at the end of the tenancy in the case of a person under-16 subject to an ASBO. Under the Homelessness (Scotland) Act 2003 an 'intentionally' homeless applicant with priority need would normally be offered a short Scottish Secure Tenancy. However, if they are subject to an ASBO, this automatic right does not exist and the local authority may alternatively provide non-tenancy accommodation such as a hostel. Views were sought on the following questions:

42. Should Registered Social Landlords (RSLs) be given a statutory duty to participate in the production and implementation of anti-social behaviour strategies?

43. Should the Anti-social Behaviour Bill give local authorities powers to

• Regulate landlords in an area so that they control anti-social behaviour?
• Apply to the court for sanctions against private landlords with individual properties where there is anti-social behaviour?
• Use a combination of these approaches?

44. Do you think measures to reward good tenants are appropriate? If so, what more needs to be done to encourage greater use of such measures?

45. Do you agree that existing provisions in legislation on housing and homelessness linked to ASBOs should apply to ASBOs including under-16s?

9.4.1 Registered Social Landlords and Anti-social Behaviour Strategies

This question was also asked as question 1 of the consultation document and the responses are described in Chapter Seven of this report. As respondents referred back to their earlier answers to question 1, this question is not discussed further here.

9.4.2 Giving Local Authorities Powers to Regulate, or Apply for Sanctions Against, Private Landlords

9.4.2.1 Over nine in ten responses supported extending powers to local authorities by the means outlined above. Most of these responses, including the majority of local authorities and COSLA, felt that both options (regulation and sanctions) were useful and that therefore they should be used in combination. However of the small number of respondents expressing a preference between the two options more favoured option two (sanctions) to option one (regulation). There were a number of serious concerns raised about the implications of the proposals, including by those who broadly supported these measures. Many responses raised the issue of the resource implications of these proposals for local authorities. The responses supporting the measures all argued that, in the words of North Lanarkshire Council 'Private landlords should assume more responsibility for the behaviour of their tenants.'

9.4.2.2 The Scottish Council for the Single Homeless, the Chartered Institute of Housing in Scotland and South Lanarkshire Council suggested that further discussion was required in relation to the implications of wider regulation before legislation was implemented, and that this discussion should be informed by the experience of existing Housing Management Organisations. It was also strongly argued by respondents including the Chartered Institute for Housing, the Scottish Federation of Housing Associations (SFHA), Scottish Women's Aid and Shelter that any regulation scheme should consider all aspects of housing regulation, and not be introduced through a narrow focus on anti-social behaviour. The SFHA also believed that not enough emphasis was given to the holistic prevention of anti-social behaviour and wider issues relating to housing.

The SFHA argued that local authorities and RSLs should not be given primary responsibility for tackling anti-social behaviour which was a cross-tenure issue. The need for more emphasis on addressing anti-social behaviour in the owner-occupied sector was also raised by NCH Scotland and Dundee City Council. They argued that further measures should be investigated for addressing anti-social behaviour in the owner-occupied sector. Eildon Housing Association believed that further guidance on the use of ABCs and ASBOs in the private sector would be useful.

9.4.2.3 Option One: Regulation of Private Landlords

South Lanarkshire Council suggested that such measures could be supported by a voluntary accreditation scheme and similarly, Edinburgh City Council stated that voluntary accreditation schemes should be given a period of time to prove themselves effective. However, The Chartered Institute of Housing in Scotland believed that a discretionary system of registration was not adequate and that all local authorities should be required to establish a registration scheme. The Institute, in addition to three other respondents, suggested that a self-certification scheme be considered for all private landlords, which would include providing details of how they would respond to anti-social behaviour amongst their tenants. This could be enforced through local authorities undertaking periodic inspections, or targeted inspections of properties raising concerns. Shetland Council proposed that such a scheme should be paid for by private landlords, but that the trade off would be that they were then entitled to access the support and advice of local authorities in relation to anti-social behaviour, for example through utilising anti-social behaviour units.

Of the three responses referring to making the letting of unregistered properties illegal, all were in favour of the proposal. One respondent suggested that the issue of anti-social behaviour in the private rented sector could be addressed by giving private landlords further powers to act.

The National Federation of Residential Landlords raised the issue of anti-social tenants evicted or refused housing by social landlords ending up being housed in the private rented sector. The Federation suggested that consideration be given to making any commonly held registers on ASBOs available to private landlords.

However, the National Federation of Residential Landlords strongly rejected the proposals to regulate and impose sanctions on private landlords. They stated that 'under no circumstances should private landlords be made legally responsible for the conduct of tenants beyond their current obligations under civil law.' They believed that addressing anti-social behaviour should remain a government responsibility. The Scottish Federation of Housing Associations argued that the regulation option was unpractical.

Renfrewshire Council and several other respondents were concerned that the proposals should not deter private landlords given the important role of the private rented sector in housing individuals unable to access other tenures. Similarly, several responses were concerned about the potential rise in the number of vacant properties, with the negative impact this would have on local areas. Orkney Islands and Shetland Islands Council, along with another local authority were also concerned with the additional pressure such results may bring to local authorities, through a rise in the number of individuals requiring to be housed by local authorities and the strain this would place on non-tenancy accommodation. It was believed that these measures may conflict with homelessness legislation in this regard. Aberdeenshire Council expressed concerns that the proposals may place already vulnerable tenants at greater disadvantage.

Larkfield Housing Association suggested that, in areas where a registered social landlord was the predominant landlord, then RSLs should be given the powers to regulate or apply for sanctions. However, Irvine Housing Association argued that such a role should remain the duty of local authorities. Irvine Housing Association sought clarification that such a regulatory scheme would not be extended to RSLs, who are already regulated by Communities Scotland. Shelter requested further clarifications regarding how areas covered by regulation were to be defined.

9.4.3.4 Option Two: Sanctions against Private Landlords

Highland Council and the South Ayrshire Conservative Group believed that sanctions were more appropriate than management intervention. TIGHRA suggested that the regulation of private landlords was a longer-term goal, and that sanctions could be introduced in the short term whilst all the issues relating to regulation were addressed.

The small number of respondents who directly referred to making private landlords liable for the cost of an ASBO in relation to anti-social behaviour by their tenants all believed that this option would be useful.

The SFHA sought clarification of where responsibility within a local authority would lie in relation to applying to the court, and what level of evidence would be required. The WS Society expressed concerns over penalising third parties through private landlords being liable for the anti-social behaviour of their tenants. South Lanarkshire Council believed that it should be left to local authorities as to whether taking over management of a particular property would be appropriate.

In relation to local authorities assuming management powers, The Chartered Institute of Housing in Scotland urged caution in assuming that landlords would always be able to address anti-social behaviour if they were willing to do so. The Institute suggested that in some cases landlords would wish to address the anti-social behaviour but would be unaware of where to access appropriate advice and support. The provision of this support may be as effective as enforcement in preventing anti-social behaviour from escalating. Private landlords may also not be made aware of anti-social behaviour taking place.

9.4.4 Housing Benefit

Sixteen responses referred to housing benefit sanctions, either as part of the third sanction aimed primarily at landlords outlined in option two above, or in the paragraph in the consultation document which referred to the UK government consultation on housing benefit sanctions. All but one of the responses (from an individual) were opposed to these sanctions. Concerns included Human Rights legislation, and the likely impact of these measures on both individuals and families, local authorities who would have responsibility for accommodating families made homeless through the Homelessness (Scotland) Act 2003 and the detrimental impacts upon local communities of increasing numbers of vacant properties.

9.4.5 Rewarding Good Tenants

9.4.5.1 Responses were equally divided over the use of rewards for tenants, and a significant number of responses took a neutral view. Strathclyde Police Joint Board echoed the sentiment of those in favour, by stating that such schemes were consistent with the promoting of good citizenship. Those in favour included Queens Cross Housing Association and also Cube Housing Associations, which reported that such schemes had the strong support of their tenants. Dundee Tenants Federation argued that 'good' tenants should not have to subsidise those engaged in anti-social behaviour. Falkirk Council believed that reward schemes may help address the wider perception that local authorities spent all their time and resources on individuals causing problems in communities at the expense of the majority.

The Chartered Institute for Housing in Scotland also believed that such reward initiatives could have positive impacts, but argued that the effectiveness of such schemes would depend on local circumstances and that they may not be suitable for all housing organisations. The Institute believed that the Scottish Executive, through Communities Scotland had a role to play in supporting tenant reward schemes by disseminating good practice but that implementing these initiatives should be a decision for individual landlords. This position was supported by several other responses, including the SFHA, who also supported the principle of reward schemes.

9.4.5.2 A number of responses, including several tenants' organisations, regarded such schemes as paternalistic, patronising, condescending or demeaning to tenants, and believed they reinforced the undue prominence given to social housing tenants as the principal perpetrators of anti-social behaviour. In relation to this point, Edinburgh Tenants Federation, South Ayrshire Council and South Ayrshire Conservative Group felt it would be more appropriate to reward 'citizens' or residents. A large number of those respondees, including several tenants organisations, who were against such schemes also argued that individuals should not be rewarded for merely complying with tenancy agreements nor for maintaining the normal standards of behaviour expected by society.

9.4.5.3 Greater Glasgow NHS Board and West Lothian Council asked what evidence existed for the success of these schemes in actually changing anti-social behaviour. Several other responses, including Dumfries and Galloway Housing Partnership supported the principle of tenant rewards initiatives if they were demonstrated to be successful. However, one respondent argued that rewards to tenants could be seen as a separate issue to addressing anti-social behaviour in that they served a function in retaining tenants. Aberdeen City Council made a similar point about such initiatives as marketing devices.

9.4.5.4 One local authority pointed out that the schemes would depend on some form of assessment of tenants. Dumfries and Galloway Council, Cunninghame Housing Association, Dundee Tenants Federation and East Lothian Tenants Federation wondered who defined and decided what constituted a 'good' tenant. It was argued that if the criteria included not having rent arrears, this would not address the complex reasons why such arrears may exist, including inefficiencies in the housing benefit system.

9.4.5.5 Concerns were raised about the potential divisiveness of these schemes by Cunninghame Housing Association and Perth and Kinross Safer City Centre Forum and West Lothian Council. Similarly, Orkney Islands Council raised confidentiality issues if it became evident who was getting enhanced repairs services and who was not. North Lanarkshire, East Renfrewshire and Falkirk Councils were concerned about the emergence of a two-tier system, and suggested the need to maintain equality of service. Orkney Islands Council argued that any move to reduce repairs services would not only affect individual tenants, but would have a detrimental visual impact on the wider surrounding area. Shelter made a similar observation on the potential detrimental environmental impact, and argued that this would be likely to exacerbate the problem and actually lead to more anti-social behaviour problems. Renfrewshire Community Safety Partnership believed it was important that any such schemes should not breach existing tenancy agreements, and the SFHA commented that services should be enhanced as a reward, rather than being depleted as a punishment.

9.4.5.6 Orkney Islands Council stated that there would also be implications for local authorities in meeting performance indicators, and similarly Stirling Council felt that the proposals may conflict with landlords' responsibilities in relation to the upkeep of properties. The Council sought clarification on local authorities' legal position in relation to such schemes unless they were subsumed within the wider remit of the power to promote community wellbeing.

9.4.5.7 Orkney Islands and East Ayrshire argued that rewards should be financial rather than taking the form of incentives like bus trips, although the point was made that rent-free weeks may have dangers in breaking the habit of paying regularly. Orkney Islands Council suggested that rewards could be combined with choice-based allocation systems where these operated to increase the priority for re-housing given to eligible tenants as an incentive. Shelter believed that community events would be a more appropriate reward, and were supported by South Lanarkshire Tenants and Residents Group and South Ayrshire Conservative Group, who argued for community enhancement initiatives or community facilities to be provided on a cross-tenure basis. Respondents including South Lanarkshire Council and Perth and Kinross Tenants Federation argued that it was more appropriate that resources should be devoted to taking more effective action in addressing the anti-social behaviour of the small minority. Highland Council queried whether such schemes in local authorities would be funded through the Housing Revenue Account, and if so they questioned its purpose as 'good' tenants would essentially be funding the schemes in the first place.

9.4.5.8 Greater Glasgow NHS Board suggested that to be effective, schemes would have to provide additional incentives or rewards for anti-social tenants to change their behaviour. Similarly, TIGHRA warned that reward initiatives should not result in a further disengagement of individuals perpetrating anti-social behaviour. Children 1 ^st argued that reward schemes should recognise children as well as adults. One respondent queried whether in the case of housing benefit, direct financial rewards, if used, would accrue to the Treasury or to the individual tenants involved.

9.4.5.9 Good Neighbour Declarations

Very few responses made direct reference to good neighbour declarations. Of the handful that did, support was given to these declarations in explicitly promoting the rights and responsibilities of citizens to their wider communities. However, the point was also made by these responses that such rights and responsibilities were, to a large part, already enshrined in tenancy agreements.

9.4.6 Linking ASBOs for Under-16s to Housing and Homelessness Legislation

9.4.6.1 Again, responses were equally divided about whether the linkages between ASBOs and tenancy conditions should extend to cases involving under-16s. Those who supported the measure argued that it would reinforce parental responsibility, that it made sense to have consistency in the consequences of ASBOs, and that it was a useful measure in tackling the impact of anti-social behaviour on local communities. Several local authorities and the Chartered Institute of Housing in Scotland agreed that if ASBOs were extended to under-16s, then the same linkages should apply.

9.4.6.2 The Scottish Council for the Single Homeless believed that the tone of the consultation paper did not coincide with that of the Homelessness Task Force Report and suggested that if the homelessness framework was to work effectively, the emphasis required to be on addressing the root causes of anti-social behaviour rather than measures which would displace problems from area to area. More dissemination of good practice in a holistic approach to anti-social behaviour was required. This view was shared by Shelter, who argued that a narrow linking of housing and anti-social behaviour would undermine other policy initiatives aimed at reducing homelessness. A number of respondents including Children in Scotland and Scottish Women's Aid argued for more resources for preventative intervention and support services.

9.4.6.3 South Lanarkshire Council and another local authority pointed out that the duty on local authorities to provide non-tenancy accommodation and support services to homeless individuals and families, alongside the new measures relating to anti-social behaviour could be regarded as potentially contradictory. Similarly, the Glasgow Housing Association argued that homelessness provisions could be seen to undermine evictions, and the confidence of wider communities. There would be increasing pressure on local authority accommodation and support services.

9.4.6.4 Orkney Islands Council suggested that the measure would be useful if parents were condoning or wilfully failing to take responsibility for their children's behaviour, but that in many cases parents were struggling to control their children, and that this measure would not be helpful in these circumstances.

9.4.6.5 One local authority pointed out that as children under-16 were not tenants, the linkages between ASBOs and tenancy could not be directly made. The Scottish Children's Reporters Administration stated that policy should seek to avoid an ASBO on an under-16 being the deciding factor in refusal of a tenancy.

9.4.6.6 A large number of responses opposed to extending the provisions to under-16s argued that this would lead to unfair detrimental consequences for other family members, including other dependent children and that families should not be penalised for the actions of a minor. These included Children in Scotland, Barnardos Scotland, NCH Scotland, the Scottish Children's Reporters Administration, The SFHA, Shetland and Aberdeenshire Councils and COSLA. Responses from Youthlink and the Scottish Youth Parliament suggested that young people who had been consulted on this issue also believed that other family members should not be penalised for the anti-social behaviour of a child. Fife Community Safety Partnership also believed the measures would disproportionately impact on women and other children.

9.4.6.7 A further argument against the proposal made by several responses including Children in Scotland, Scottish Women's Aid and North Ayrshire Community Planning Partnership was that the measure would create further tension between parents and children in what was likely to be an already difficult family situation.

9.4.6.8 Barnardos Scotland stated that housing in non-tenancy accommodation is not an option for children, and this extension of provisions would lead to increasing numbers of children looked after by local authorities. NCH Scotland believed that the involvement of the courts would undermine the Children's Hearing System. Similarly, Moray Council argued that under-16 should be dealt with through the Children's Hearing System. Dumfries and Galloway Council believed that Parenting Orders would be more likely to be effective in such circumstances. Breaking of an ASBO should not carry an additional penalty, and such a measure would make the likelihood of compliance almost impossible.

9.4.6.9 Aberdeen Council suggested these measures should be looked at as part of the wider youth justice system. Renfrewshire Council, Renfrewshire Community Safety Partnership stated that detailed guidance on how this would operate was required. The National Autistic Society argued that families with children with autism should not be unduly subject to ASBOs and related housing consequences. Fife Victim pointed out that consideration should be given to the crime and anti-social behaviour experienced by homeless people and that support structures needed to build the confidence in authorities of disengaged individuals. Larkfield Housing Association believed that such powers should only be used in a minority of extreme cases.

9.5 SUMMARY

Litter, Fly-Tipping and Abandoned Vehicles

• There was strong support for giving the police powers to award Fixed Penalty Fines for litter offences. The majority of responses did not favour giving this power to community wardens.
• Although many responses believed that local authorities had sufficient powers to clear litter, there was widespread recognition that these powers were not being utilised as effectively as they may be, due to resources and other issues. Many responses also supported local authorities having further powers to clear litter from private land.
• The levels of charges proposed for covering local authorities costs for removing, storing and disposing of abandoned vehicles ranged from 55 to 250. There was general agreement that such charges should include the true costs incurred by local authorities' plus an additional amount to act as a deterrent. The main concern relating to abandoned vehicles was the present difficultly of establishing ownership and responsibility for abandoned cars.
• It was generally believed that the present regulations governing the removal of vehicles causing an obstruction is sufficient, but that such processes could be fast tracked, and the powers in relation to vehicles not on a highway but causing an obstruction should be clarified.
• Simplified means, including Fixed Penalty Fines, for penalising fly-tipping were generally welcomed, although again it was felt this power should be given to the police and local authority environmental health officers rather than community wardens. Reponses argued that the main issue with fly-tipping remained the difficulty of actually catching and prosecuting offenders.
• There was almost universal support for the proposals to give local authorities powers to examine waste documents and to double the fine limit for fly-tipping to 40,000. It was argued that the increasing the likelihood of offenders being caught and courts imposing more severe penalties were essential if such measures were to be effective.

Graffiti

• There was a clear majority of responses in favour of banning the sale of spray paint to under-16s. However, concerns were raised about the effectiveness of such a ban and how it would be implemented and enforced. Concerns were also raised about the legitimate use of spray paint by under-16s and the need to address other means by which spray paint could be obtained.
• Further powers for local authorities to remove graffiti from privately-owned property were welcomed. Further consideration was requested about how such measures could be used and what responsibilities and costs would accrue to private owners. The powers were particularly supported in relation to racist, sectarian, homophobic or otherwise offensive graffiti where swift removal was regarded as essential.

Noise Nuisance

• The responses recognised that noise nuisance was a considerable problem in many local communities and that local authorities should be enabled, rather than required to implement a night-time noise service.
• Responses generally welcomed environmental health officers, and the police, having powers to implement Fixed penalty Notices relating to domestic noise nuisance, although community wardens having this power was not generally supported. Health and safety issues would need to be addressed, as would the current shortage of environmental health officers in some local authorities.
• The majority of responses believed that extending the service to 24 hours should only be required where it was proportionate to need and that local authorities should have the discretion to assess this requirement in their own areas. There were significant resource and staff conditions implications for such an extension of these services.
• The overall consensus of responses was that the statutory proof relating to noise nuisance should remain as it is, although some suggestions for increasing flexibility and effectiveness were put forward.

Anti-social Behaviour and Housing

• Many responses were concerned that the proposals paid inadequate attention to addressing the problems of anti-social behaviour in the owner-occupied housing sector.
• There was widespread support for increasing local authorities' powers in relation to anti-social behaviour in the private-rented sector, both through a system of regulation and the imposition of sanctions. Concerns were raised about the resource implications for local authorities, the effectiveness of the various measures, and the need to clarify the duties and responsibilities of local authorities, private landlords, registered social landlords and individual tenants.
• Responses were divided about the appropriateness of reward schemes for tenants. Those supporting such schemes argued they provided incentives for desirable behaviour and offered official recognition and resources to the large majority of law-abiding tenants. Those opposed argued that such schemes were patronising and divisive, in that they concentrated only on the public housing sector, rewarded behaviour which should be expected in any case and may further the disengagement of those involved in anti-social behaviour.
• It was widely believed that the implementation of tenant reward schemes should be left to the discretion of individual landlords.
• Responses were similarly divided about whether existing provisions in legislation on housing and homelessness linked to ASBOs should apply to ASBOs involving under-16s. Those supporting the link argued that it was essential to ensure the responsibility of parents, to provide for effective sanctions and to protect wider communities. Those opposed believed that it may increase homelessness, placing additional burdens on local authorities, and would increase the exclusion of families facing difficulties rather than reducing incidences of anti-social behaviour.

Fireworks

The small numbers of responses referring to fireworks backed the Scottish executive's support for the Westminster Private Member's Bill addressing this issue

Housing Benefit

The small numbers of responses addressing the issue of linking housing benefit payments to anti-social behaviour were mostly opposed to any such measures.