Delegating Authority of the CPN to Housing

The ASB, Crime and Policing Act 2014 (“the ASB Act”) introduced the Community Protection Notice (“CPN”) — a power automatically conferred to the police and local authorities. It also stated that the power could be delegated to other bodies, including social housing providers.

It would be fair to say that, to date, uptake of this offer has been low. There are several reasons for this:

  • Doubt about what additional benefit the CPN could offer to the housing toolkit, with housing providers feeling that tenancy breach warnings that detail the risk of eviction was likely to be more of a deterrent than a community protection warning (CPW) outlining the sanction of the breach as a fine
  • Concerns about practicalities, such as who would be responsible for enforcing any breaches of CPN
  • Large housing associations with stock across multiple local authority areas would need to seek delegation from each council in turn, each one with a different delegation process
  • Confusion about what the term ‘delegation’ meant in practice. Would it need to be a cabinet decision? What does delegation actually look like?

Unlike the other tools in the ASB Act, the CPN was not based on any previous power that most ASB practitioners had experience of using. Because of this, there were several unknowns in relation to how effective the tool would be in reducing ASB and stopping harm being caused to residents and communities. Therefore, it was difficult to see the benefit of putting the time and effort into seeking delegated authority.

However, since the introduction of the CPN in October 2014, there has been a swell in uses of the tool. Anecdotally, it appears even the CPW alone has proven to be an effective deterrent in preventing further acts of ASB.

I say anecdotally because, without any central recording figures around the use of the tool and the number of breaches thereafter, it’s difficult to know with any certainty what the national picture looks like. However, suggestions about why areas have reported high levels of resolution includes that the CPW looks and sounds more official and ‘legal’ than a tenancy warning letter and/or that the threat of a fine is actually more of a deterrent than expected.

The tool has also been used to address a far broader range of behaviours than was perhaps originally intended.

The evolution of the tool has meant housing providers are starting to reconsider the decision to seek delegated authority. Several have reached out to find areas that have already successfully gone through this process, with a view to learning what works and the things to consider. This is where a brick wall has often been hit, with there still being relatively few cases of delegated authority.

With this in mind, Darren Burton from Forbes Solicitors and I established a national CPN working group towards the end of 2021. Members included academics from Sheffield Hallam University (“SHU”), police, housing providers, local authorities, and legal representatives. We spoke to several areas who’d gone through the delegation process to understand the steps they had followed.

Some of the key points to come out of these conversations were:

  1. Consideration should be had as to whether delegated authority is given for all behaviour types or whether it is limited to certain ASB acts only. For example, research by SHU has identified that there are some scenarios where CPWs and CPNs might not be suitable, such as neighbour disputes. In these situations, the tool may be being used as it is difficult to understand who is at fault in the matter and a decision is made to issue both parties a CPW. The problem, however, is that it could simply be kicking the problem down the line and raising expectations – if there are reported breaches, the behaviour will need to be proven to the criminal standard of proof, which is likely to be challenging in cases where it is one word against another. The council may wish to ensure situations like this do not arise by clearly defining the cases CPNs can be used. This should be done in consultation with the housing provider, understanding what their areas of concern are.

 

  1. Part of the agreement for delegated authority should consider how duplication is to be prevented. If the housing provider is using a CPN against a non-tenant because they are causing problems to tenants and therefore the behaviour is ‘housing related’, there needs to be some safeguards to ensure that another agency, such as the local authority or police, are not already taking action against the non-tenant, which could duplicate or contradict. It may be beneficial to include a “checking” requirement before a CPW or CPN is issued to ensure the housing provider speaks to local agencies beforehand. Alternatively, the issuing of CPWs/CPNs by the housing provider could be limited to their own tenants.

 

  1. When deciding on the use of any ASB tool it is vitally important this is a fully informed and appropriate decision. This means checking that all information is known about the severity of the situation, the amount of ASB that is occurring, the needs of the person causing the harm etc. With regards to the latter, it may be that the perpetrator is known to the mental health services. This might not be a blocker to a CPW/CPN being issued, but it should give rise to consideration of how best to word the conditions within. It may be that the agreed process for use of the CPN includes a check with the local authority to ensure there are no support needs the housing provider is not already aware of.

 

  1. A long-held concern with regards to the process for using CPNs is that responsibility for enforcement reverts to the local authority. Understandably this is a concern for the council, which may not have the finances or capacity to manage breaches. They may also be reluctant to prosecute on cases they had no insight into at the point of service. Equally, for the housing provider, they may not wish for control of their case and the way it is managed to pass over to the council. Part of the conversation around delegated authority must, therefore, include enforcing any breaches. This might include the council agreeing to take responsibility either with or without a financial contribution from the housing provider, the housing provider doing the work on the council’s behalf, or the housing provider using the breach of CPN as evidence to justify the use of another housing tool. Indeed, some housing providers we spoke to never utilise the direct sanctions for breaching a CPN, but instead, seek an ASB injunction instead.

 

  1. Efficiency and keeping things as simple as possible were key messages from the areas we spoke to. Reference was made to ensuring that whenever CPN training is delivered to the local authority that housing providers should be invited too to ensure consistent messages and application. For similar reasons, all should be using consistent templates and resources.

 

A much-cited benefit during this work has been the ‘middle ground’ option that CPNs can bring to the housing toolkit. Without it, the toolkit can sometimes appear to be a warning letter, injunction, possession. There is a large jump from warning letters to legal action, which might be hard to justify as proportionate in most cases. However, without an escalation route, warning letters can lose their effectiveness and become less and less of a deterrent. The CPW/CPN brings something in the middle. A legal action that shows things are increasing in severity, but without the implications of an injunction or possession proceedings.

Want to find out more? Darren and I co-hosted a webinar on this subject recently and a recording can be found here.

Want to ensure you receive future blogs direct to your inbox? Sign up to my mailing list here. Past blogs and webinar recordings are also available in the resources area of my website.

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