The use of positive requirements in ASB Injunctions: ‘Make me’

The most exciting development of 2014 was no doubt the introduction of the shiny new Anti-Social Behaviour Injunction (“ASBI”) under the Anti-Social Behaviour Crime & Policing Act 2014.

The ASBI has since become a firm favourite in the housing officers’ toolkit. Its flexibility and relative ease to obtain mean that an Injunction Order can be implemented quickly and adapted to suit any specific requirements of the Community or the Respondent’s circumstances.

In June 2020, however, the Civil Justice Council published a damning study on anti-social behaviour and the civil courts (“the report”). First up in the firing line was the ASBI and the report noted a “number of serious and significant concerns…about the way that the 2014 legislation was being used/applied on a daily basis across the country” in the context of ASBI applications.  

The report highlights several overarching issues with the ASBI, with one of the main issues being the distinct lack of positive requirements sought in ASBI applications by social landlords. 

A positive requirement in an injunction is simply a term requiring the Respondent(s) to take or do specific actions. Positive requirements are commonplace in breach of tenancy injunctions for issues such as poor property condition, hoarding and repeated failures to provide access for inspections. The tenant will either comply with the Injunction Order or find themselves on the receiving end of further which could involve enforcement of the breaches of the Injunction Order, or a possession claim. 

Positive requirements in ASBIs were introduced under the ASBCPA 2014 to patch criticisms about the purely prohibitive nature of the former Anti-Social Behaviour Order (“ASBO”), the ASBI’s predecessor. In the 2014 Statutory Guidance for Frontline Professionals, ASBOs were criticised as being too focused on prohibitions and enforcement, and a lack of any attempt to address the underlying behaviour of re-offending Respondents was seen as a key failing of the ASBO.

One of the main intentions behind the introduction of positive requirements in ASBIs was therefore to facilitate a long-term change in the behaviour of Respondents, by requiring them to take part in activities or support such as drug and alcohol rehabilitation programmes, unpaid work or specialist support services for mental health. 

Take-up, however, has been slim and the report suggests that “what has subsequently taken place on a wide scale in the civil courts has not matched the stated aims.” The report mentions that in a 2018 meeting of 40 housing practitioners from various backgrounds, only one of the participants had experience of a positive requirement being imposed.

But if the Civil Justice Council’s view that increased use of positive requirements is one of the ways to achieve better compliance and long-term harmony, then why do they remain so rare? In our view, the reasons can be chalked down to the following: 

• Positive terms are required to be supervised and monitored. 
• Engagement with the positive term cannot be guaranteed. 
• Drafting of positive terms in ASB proceedings can be complex. 
• There is no guarantee of support programmes in the Respondent’s area.  
• The costs of making such an application, supervising the positive requirement, and ensuring compliance are likely to be much higher than a standard prohibitory ASBI.  
• There is a distinct lack of data to show that positive terms are having the desired effect on underlying behaviour. 

Whilst each of the above deficiencies could form their own study and article, it is clear from a glance at the list itself that positive requirements present a litany of issues from drafting the clauses up to the monitoring and enforcement of any ordered terms. Section 3 of the ASBCPA 2014 details the information and requirements for a positive requirement to be granted by a court. The rules are onerous and require a level of supervision from housing officers that would consume a vast amount of their time if positive requirements were used on a widespread basis.  

There are also confidentiality conflicts which render the supervision and enforcement of a positive requirement, redundant. In a recent case, we were instructed by a social landlord to seek a positive requirement in an ASBI for the Respondent’s participation in (and crucially their engagement with) a drug and alcohol rehabilitation program. Under sections 3(1), 3(2) and 3(4)(c) of the ASBCPA 2014, our client was required to provide evidence of the suitability and enforceability of the requirement, as well as putting forward a person to supervise compliance with the requirement. Whilst there was a support programme which had space to accept the Respondent, the administrator of the programme made it clear that they would not be able to share details of the Respondent’s engagement with the programme unless the Respondent consented to sharing that information with the landlord.  This therefore made it exceptionally difficult to know whether or not the Respondent was engaging with the programme for the purposes of measuring compliance with an Order. 

So, what is the benefit of all of that work, and all of those legal fees, in getting a positive requirement granted? In my view, very little. Whilst aiming to improve the long-term behaviour of a Respondent is an exceptionally important part of community policing and reducing overall ASB; positive requirements will in my view have no short–term effect on the nuisance being caused and only prohibitory terms will achieve the outcome of stopping the ASB in its tracks. For that reason and for the reasons of cost and effort, an ASB practitioner is likely to swerve the use of a positive requirement in an ASBI, in favour of tightly drafted prohibitory terms to treat the immediate symptoms of the ASB. 

The report does suggest a new framework for the implementation and use of positive terms, which is more similar to the criminal procedures and rules concerning Criminal Behaviour Orders. In the criminal system the purpose-built probation service acts as the driving force behind arrangement, monitoring and enforcement of positive requirements. Whilst a framework in the image of the criminal model seems attractive, any reform is likely to be exceptionally slow and, for the time being, it seems to us that despite better recent judicial training and encouragement from the Civil Justice Council, use of positive requirements in ASBI applications will remain very rare in practice.