Do your duty

During the past 10 years, successful lobbying by social landlords has led to dramatic growth in the armoury of legal weapons available to tackle antisocial behaviour – including, now, county court antisocial behaviour orders and the new Antisocial Behaviour Bill.

This process of legal "tooling-up" has been at substantial cost to the general legal rights of social and public sector tenants. But the majority have been prepared to trust social landlords that the new measures will be used when they are necessary – but only when completely justified.

Unfortunately, the sector's record on justification has not been good: witness the (ab)use of the introductory tenancy scheme. Much lauded as an important provision to tackle tenant misconduct, its main target has been the new tenant who falls into rent arrears. Likewise, the power to dispense with possession notices was introduced to allow council landlords to tackle nuisance tenants more promptly but is deployed day-in, day-out, to cover problems of poorly drafted notices or landlords' failure to serve notices properly.

But what has concerned tenants the most has been the failure of some landlords on the former count – that the powers would be used when necessary. Last year's consultation paper from the-then Department of Transport, Local Government and the Regions, Tackling Antisocial Tenants, drew attention to the lack of a uniform response, and in some cases any response at all, by some landlords to complaints from the victims of nuisance behaviour by their tenants. In the Law Commission's paper Renting Homes, which was also out for consultation last year, the same topic was raised. The commission floated the possibility that, if landlords continued to "sit on their hands" when faced with complaints from the victims of tenant nuisance, a duty to act might be necessary.

On this crucial issue, the current Antisocial Behaviour Bill takes tenants only to first base. It will impose a duty on social landlords to establish policies and procedures for tackling tenant nuisance, and to publish them. That will certainly help the regulators, inspectors and ombudsmen to cross-check that landlords have been following their declared policies – or, more likely, highlight the dilatory who fail to formulate or publish them at all. But what of the victims?

So far, the law has not recognised a duty on landlords to use the full force of the law against their nuisance tenants housing is a place of last resort

Surely it is now reasonable for the landlord sector to respect the legitimate expectation of the majority of tenants that, in appropriate cases, the full force of the law will be deployed against nuisance perpetrators. Thus far, the law has not recognised such a duty on landlords to act against their nuisance tenants. As the recent case against the Northern Ireland Housing Executive showed (HT 14 February, page 12), even creative use of the Human Rights Act cannot produce more than a legal obligation on a landlord to simply "weigh up" whether to take action.

However, the landlord sector now has two excellent opportunities to demonstrate its true commitment to tackling antisocial behaviour. First, as the Antisocial Behaviour Bill wends its way through the parliamentary process, amendments will be proposed to tack on a duty on landlords to act in serious nuisance cases. I hope there will be broad and constructive support for this from the sector.

Second, whatever the fate of a proposed statutory duty to act, each landlord adopting a new policy and procedure for tackling nuisance tenants has an individual opportunity to demonstrate that its pieces of paper are intended to have real effect. Each such landlord could agree to vary its standard terms and conditions of tenancy. The new clause could make it a landlord's obligation to take action in accordance with its published policies and procedures. If the victims of inaction are themselves tenants, the breach of such a new clause would give them a legal "peg" on which to hang a claim for a court order to prod the recalcitrant landlord into action.