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Local Authorities (Contracting out of Anti-social Behaviour Order Functions) (England) Order 2007

Volume 689: debated on Wednesday 21 February 2007

rose to move, That the Grand Committee do report to the House that it has considered the Local Authorities (Contracting Out of Anti-social Behaviour Order Functions) (England) Order 2007.

The noble Baroness said: The order was laid before the House on 9 January 2007. In summary, it enables local authorities, where they so wish, to enter into arrangements with organisations that manage their housing stock so that those organisations may exercise some or all of the local authority’s functions for seeking anti-social behaviour orders. The Serious Organised Crime and Police Act 2005 gives the Secretary of State the power to make an order specifying a body or type of body to which local authorities may contract out all or part of their anti-social behaviour order functions. We issued a consultation paper, Enabling Local Authorities to Contract their Anti-social Behaviour Order Functions to Organisations Managing their Housing Stock, in November 2005, and it forms the basis for the statutory instrument that we are discussing today. There were areas where we have advanced the policy in the light of the constructive comments from stakeholders, and, overall, the consultation provided a clear mandate for pursuing our proposal as put out to consultation.

Currently, agencies provided with the power to seek anti-social behaviour orders through the courts are restricted to those listed as relevant authorities in the Crime and Disorder Act. They include the police, local authorities, registered social landlords, transport police and county councils. At present, local authorities may not contract out their power to apply for an anti-social behaviour order to other bodies. We believe that enabling them to do so in the context of social housing stands to provide a number of advantages where the local authority has delegated the delivery of front-line services to other bodies. As the Committee will be aware, many local authorities in England have delegated operational functions to other organisations that manage some or all of their housing stock on their behalf, notably arm’s-length management organisations and tenant management organisations, as well as private finance consortia.

At the moment, every time an organisation, such as an arm’s-length management organisation, wishes to seek an anti-social behaviour order to protect the community, it must approach its parent local authority to make the application on its behalf. This can lead to delays and unnecessary red tape. A rapid response is often critical in building and maintaining public confidence in an agency’s ability and preparedness to act to stop anti-social behaviour. It is critical that residents have faith in those managing their housing and are reassured that they are suitably equipped to do the job. Officers working for arm’s-length management organisations or tenant management organisations will more often than not be leading on handling complaints and pursuing cases. They will be responsible for gathering evidence and taking decisions on how best to act. We see no reason why they should not be empowered, where the local authority sees fit, to carry the process through to resolution by pursuing an anti-social behaviour order application through the courts.

It is important to note that many housing management organisations already pursue applications through the courts for other forms of action to tackle anti-social behaviour, including possession cases and injunctions. That demands much the same level of judgment, capacity and expertise as anti-social behaviour order applications. Anti-social behaviour orders are powerful measures, and our primary concern is to ensure that they are used appropriately and only where they provide the best solution for protecting the community from anti-social behaviour.

We recognise that local flexibility must be coupled with proper accountability. We are conscious of the critical importance of making sure that those entrusted with these powers can be expected to be capable of exercising them responsibly. That is why we have made an explicit link between this initiative and Section 27 of the Housing Act 1985, which is the statutory process for delegating housing management functions. The effect of Section 27 is to regulate the process by which the local authority appoints another housing body to manage council homes. That process is primarily designed to protect tenants’ interests and ensures that housing management responsibilities may be delegated only to those with appropriate skills and resources. We believe that the requirement under Section 27 to have in place a robust management agreement between the local authority and the housing management organisation will ensure robust government and accountability and will provide a framework for ongoing performance management.

It is important to be clear that local authorities will remain fully accountable for how any contracted responsibilities are exercised. We will be issuing statutory guidance on the contracting out of ASBO functions to which local authorities and any organisations to which they may contract out must have regard. In preparing that guidance, we will take full account of issues raised through the consultation process and of points raised in this debate. This order will for the first time give tenant management organisations the power to apply for anti-social behaviour orders, where appropriate in the local context. The Prime Minister and the Secretary of State for Communities and Local Government focused on this issue in their announcement on 9 January, and I am pleased to say that the response we have received to date has been very positive.

Some concerns have been raised about whether by providing anti-social behaviour order powers we might provoke unchecked vigilante action where neighbours take out vendettas on each other through anti-social behaviour order applications. These concerns are unfounded and, it could be argued, betray a lack of awareness of the way that tenant management organisations are established and operated. Many tenant management organisations already have responsibility for the day-to-day running of the homes in their areas, and they are delivering excellent services. They are called upon to take on these responsibilities only when they have undergone a rigorous process of training and accreditation and they must secure the support of the community for taking on management functions. Many employ dedicated staff who manage large estates. We are not talking about giving powers to residents’ associations with informal constitutions but rather about delegating to highly professional organisations with established track records that are subject to robust accreditation and on-going monitoring.

Providing additional powers to TMOs, where appropriate, would give local residents a greater say in how their estates are run and would support them in ensuring that disruptive anti-social behaviour is dealt with swiftly and effectively. This order is relatively simple—I dare say that—and has been drafted to provide the local authority with the maximum flexibility to ensure that any arrangements it may wish to enter into are tailored to best fit the local context. The local authority retains full discretion about whether it wishes to make use of this provision. It may enter into contracting arrangements with one or more housing management organisations with which it holds management agreements. An authority will retain the power to discharge its anti-social behaviour order functions in its own right, regardless of whether it has entered into a contracting-out arrangement. The order allows local authorities full flexibility to restrict the circumstances in which the specified organisations are able to discharge the contracted-out functions if they so wish. The order also allows a local authority to attach other conditions, as it considers appropriate. These conditions must be adhered to by the housing management organisation.

We have included in the order a duty on the part of the organisation to which the local authority contracts to consult the parent local authority every time the housing management organisation wishes to apply for an anti-social behaviour order. A number of responses to the consultation asked that we made that explicit in the interests of supporting multi-agency working and the exchange of pertinent information. It is important that we recognise that that has been taken on board from the consultation process.

This order also expressly confirms that housing management organisations to which anti-social behaviour order functions are contracted out will be provided with full rights of audience to take cases through magistrates’ courts, which is essential in enabling them to lead on applications from the onset to the conclusion of a case. It is important to note that the majority of anti-social behaviour order applications are currently conducted in the magistrates’ courts, although they are also available in the civil courts alongside other applications.

My department, the Home Office and the Department for Constitutional Affairs are working together on new proposals to provide housing officers working for arm’s-length management organisations and tenant management organisations with rights of audience in the civil courts. If enacted, this will, in due course, allow them to pursue anti-social behaviour order applications in the civil courts as well. At the moment, the right of audience in the civil courts is subject to judicial discretion.

In many situations arm’s-length management organisations and tenant management organisation officers will already be well practised in taking cases. However, we will make clear through the issue of guidance that local authorities will need to work closely with housing management bodies in ensuring that those responsible for taking cases in court are fully trained and competent to do so. In more complex cases, it is likely that the housing management organisation will continue to work closely with a local authority’s legal team or commission specialist legal support.

This order gives local authorities the flexibility to make local decisions about how anti-social behaviour is tackled, enabling them to be responsive to changes in the way in which their communities are served. It will assist in delivering more efficient and effective working practices and would further equip those on the front line to be better able to tackle anti-social behaviour. I commend the order to the House.

Moved, That the Grand Committee do report to the House that it has considered the Local Authorities (Contracting Out of Anti-social Behaviour Order Functions) (England) Order 2007.—(Baroness Morgan of Drefelin).

I thank the Minister very much for her introduction of this order, and I welcome her to the Front Bench and look forward to working with her. At the outset, I want to make clear that in general we support these proposals, which seem extremely sensible, particularly because registered social landlords are already deemed appropriate bodies to have the power to seek anti-social behaviour orders to help them manage their properties. It seems therefore only right that the arm’s-length management organisations and tenant management organisations, which now control a significant proportion of local housing authority stock, should be placed in a similar position. We are absolutely at one on that.

We all recognise that the problems faced by owners and tenants of these—usually—estates from a few troublemakers can be sufficient not only to make their lives absolutely miserable but also to jeopardise the good management of the property and the maintenance of public areas and common parts of their homes. They are often intimidated by gangs of young people who defile and degrade the properties, bringing fear and insecurity to tenants and owners, and make their daily lives a battle rather than a pleasure. We fully understand the rationale behind this.

The Minister referred to the government consultation and the views of local authorities and tenant management organisations. However, I am bound to say that the consultation received a dismal number of replies. Is the Minister satisfied that this minimal response is adequate for her to be able to say that there is great support for this? Do she and the other Ministers feel able to conclude that the support of those who will implement the proposals is sufficiently robust? Does she believe that the poor response was due to general satisfaction with the proposals—people often do not bother to respond when they are happy—rather than inertia? Only 29 local authorities out of all the local authorities that have housing responsibilities bothered to reply. I have not checked how many ALMOs and TMOs there are in the country, but there are certainly more than 14. But only 14 ALMOs and TMOs bothered to respond. I know that consultation is not always enthusiastically taken up, but that response does not justify the glorious view that the Minister took of the proportion of those in favour of the proposals. The responses of 24 out of 29 local authorities justified an 80 per cent response rate being quoted. We need to bear that in mind.

I appreciate that these regulations are permissive and that a local authority does not have to implement, delegate or contract them to its tenant management organisations, but it would be a pity if so few of them did so that the effort was meaningless. That takes me back to the response to the consultation. Perhaps the Minister can tell us how effective the responsibility already borne by resident social landlords has been in terms of the number of anti-social behaviour orders they have instigated. That will give us a feel for the extent to which anti-social behaviour orders are being used by those who are already able to do so.

I apologise to the Minister because I have one or two further questions. I think it is important that we get this matter clear. The Minister said that local authorities will be expected to help their tenant management organisations in pursuing ASBOs. How much does she expect them to have to do if this is a delegated responsibility? Is it correct that the legal presentation of these cases to courts will be carried out by housing managers; or is it anticipated that although they will be the prime movers, the court work will be done by legal advocates? I think that the Minister said that where cases are complicated, legal help will be brought in, but I want to be clear on whether it is the housing managers for whom a right of audience is being sought. Is it expected that managers of larger management organisations will be more comfortable in handling anti-social behaviour orders than managers in smaller organisations who are better known to those who live in the area? Where a small housing unit has a tenant management organisation, it is possible that a manager might feel intimidated by residents if he were to try to produce an ASBO. So does the Minister think that the number of properties that a tenant management organisation manages should predicate whether it has delegated authority from the local authority?

I want to clarify whether it will be possible to give anti-social behaviour orders to people under 18. The Minister mentioned that ASBOs would be covered by the magistrates’ courts, and I presume that the youth court would be the responsible court for those cases. Can she confirm that, in common with other anti-social behaviour orders, they can be given to under-18s? Can the Minister also indicate whether the Government are likely to respond to the concerns of the Children’s Society, which feels that there should be a set of minimum national requirements to ensure child protection and welfare legislation is fully adhered to?

Finally, a question has been raised by the Statutory Instruments Committee about whether the Government have given adequate consideration to the reservations about these proposals raised by a number of legal policy and citizens’ rights organisations. They were concerned that the danger of using anti-social behaviour orders inappropriately would be magnified if the number of those entitled to issue them was increased. Could she comment on that, and on the other issue raised by the Statutory Instruments Committee, which was the use of CCTV in investigations for anti-social behaviour orders? I do not imagine that housing managers have access to CCTV footage for evidential purposes, but would the local authority be able to pass it on to them?

We have no objection to the principle of the order but it would be immensely helpful if the Minister could reply to my questions on the record.

I, too, thank the Minister for leading on this order. Before I start, I shall scotch the wicked rumour that the Liberal Democrats do not support ASBOs. We support ASBOs, but we think that there are better alternatives, such as acceptable behaviour contracts, which would be a better way forward. Nevertheless, I have always expressed concerns about training, accountability and monitoring in relation to ASBOs. Those concerns have been raised by these Benches, especially in relation to Part 3 of the Police and Justice Bill, which dealt with a similar idea—the contracting out of parenting orders and parenting contracts.

My questions are on the training and accountability of those who undertake what will be an important role. While I accept that those who will go to court will have training and responsibility—the noble Baroness, Lady Hanham, suggested that their training would be adequate—I am concerned about the hands-on issuing of ASBOs. I would like to be reassured about the training of people who do it. Where will that accountability fall? How will it be monitored? The Minister said that it would be continuously monitored, but how will that take place? What are the practicalities? With the assurance that we support this order, I simply ask the Minister to help me on those issues.

I thank my noble friend the Minister for her lucid and pithy exposition. I found the remarks from the other side of the Committee helpful and illuminating. My noble friend touched on accountability and proportionality in the powers adumbrated in the order. Can she give me some detail on the safeguards? Have they been properly considered? How meaningful were the consultations? How widespread were they? It would be helpful for the Committee to have some detail.

We still hear of youth nuisance and worse on large estates and council estates—I do not know whether we can refer to estates as social housing. However, my noble friend knows what I am saying. When this order was put together, what consideration was given to, and how do the Government assess, the success rate or otherwise of ASBOs as a policy? What is the Government’s thinking on ASBOs as they touch on the order under discussion?

Reference was made to magistrates’ courts. Do we have any feedback at all on the responses of the magistrates’ courts, which are mentioned in the Explanatory Notes? I presume that magistrates are well briefed on ASBOs and that surely they must consider applications for them. To what extent are magistrates informed by CCTV where ASBOs and their applications are concerned? Again, I am most grateful to my noble friend for her opening remarks.

I thank Members of the Committee for their kind and welcoming comments. It is a pleasure for me to speak from the Front Bench. Obviously, I have to respond to quite a few points. I am very pleased that the consultation exercise was mentioned. When considering a consultation exercise, one does not want to look only at the numbers involved; it is also important to look at who has responded. Although the relatively low number of responses might reflect the overtly technical nature of the consultation, it was important that some umbrella organisations, such as the National Federation of ALMOs and the National Federation of Tenant Management Organisations, responded. The response from the umbrella organisations is very helpful in articulating consensus about the desire for this delegation. So although the number of responses was not high, the quality of the responses was very important.

We are delegating rights of audience and contracting out ASBO functions because, without the rights of representation, we would not be fully equipping housing management organisations to undertake all stages of an ASBO application, from inception through to the court hearing. At the moment, after collecting all the evidence necessary to make the ASBO application, HMOs have to revert back to their parent local authority for the case to be presented to the courts. Even where some HMO staff may have previously held the right of audience when employed by the local authority, by giving HMOs a right of audience in ASBO applications, we will further equip them to be able to deliver a more effective ASBO service.

On the question of whether size is important in handling the delegation effectively, we would expect a contracting-out authority to satisfy itself that an HMO was suitably equipped to take on the responsibilities. However, giving rights of audience does not of course mean that they will always be utilised. There may be cases where it is felt appropriate to use the local authority’s legal team for the more complex cases, as the noble Baroness suggested, or even to commission support from private solicitors. It is fair to say, however, that it may not be appropriate for smaller TMOs, which in any event are unlikely to be leading on delivery, to take on the broader responsibilities for anti-social behaviour. This is definitely the responsibility of the local authority.

How effective have ASBOs been, for example, with regard to registered social landlords? The recent NAO report showed that the Government’s approach to tackling anti-social behaviour is effective and that ASBOs represent part of a wider toolkit of anti-social behaviour interventions. They are a key contributory factor to deterring anti-social behaviour. In the NAO survey, the majority of people—65 per cent, I think—who received an anti-social behaviour intervention did not re-engage in anti-social behaviour, which brings vital respite to communities. It found that 65 per cent of people desisted from anti-social behaviour after the first intervention, which is obviously very important; that 85 per cent of people desisted after the second intervention; and that 93 per cent desisted after the third intervention. I am delighted to see from the NAO report that perceptions of anti-social behaviour have fallen significantly nationally and at an even greater rate in particular areas of action, such as the Trailblazer area and Action area. Monitoring local area success in tackling anti-social behaviour is improving and includes the introduction of local area agreements with a mandatory outcome to build respect and reduce anti-social behaviour. Local areas are making increasing use of the new interventions to tackle anti-social behaviour.

Members of the Committee raised the important issue of surveillance. Covert surveillance evidence will not always be needed to make an anti-social behaviour order application. However, in situations in which this type of intelligence-gathering is required, there are two options available for taking this forward. Section 28 of the Regulation of Investigatory Powers Act 2000 authorises the housing management organisation to use covert surveillance on its behalf on a case-by-case basis where it is considered to protect the community from anti-social behaviour.

The HMO cannot use covert surveillance: it would have to be the local authority. The local authority could authorise the HMO, but the HMO cannot do it itself.

Perhaps I may correct myself. I am grateful to the noble Viscount for pointing that out. Section 28 of the RIPA enables the local authority to undertake covert surveillance and to authorise a housing management organisation to use covert surveillance on its behalf on a case-by-case basis where it is considered to protect the community from anti-social behaviour. Alternatively, the HMO could revert back to its parent local authority, which could then gather evidence on its behalf. This evidence could be exchanged in line with the provision in Section 115 of the Crime and Disorder Act 1998, which authorises the sharing of such information for ASBO application purposes.

The noble Baroness, Lady Harris, asked about training. It is highly unlikely that any local authority would choose to contract out ASBO functions to a housing management organisation, where that organisation is not already responsible for delivering services to tackle anti-social behaviour, unless it were part of a wider transfer of responsibilities. We must remember that the ASBO is only one tool in the armoury. As I have already said, a housing management organisation can currently take action through the courts by using injunctions and tenancy measures, as well as being equipped to extend its responsibilities by pursuing ASBO applications once this order is agreed.

Critically, many of these organisations are already doing much of this evidence-gathering and case preparation. Many ALMO staff and some TMO staff, including those responsible for delivering anti-social behaviour services, will have transferred from the local authority at the point at which housing management services were contracted out. I am sure that noble Lords agree that it would be incorrect to assume that they are any less qualified to carry out their duties following a transfer. Importantly, however, we will make it explicit in guidance that local authorities should satisfy themselves as to the capacity of staff prior to contracting out. The specifics of any necessary training are best left to the stewardship of the local authority as a critical part of contracting-out functions. It is in the best interests of both the local authority and the HMO to ensure that staff are appropriately trained to perform these functions effectively.

We shall make it clear, as is already the case, that authorities institute robust and regular reporting and monitoring procedures to identify any problems as quickly as they emerge. That would normally be done through the existing channels of communication established between authorities and organisations managing their housing. HMOs will be under a duty to consult the local authority before making an application to the court, allowing the local authority to monitor case by case and pass any pertinent information on to the TMO. Through our regulatory impact assessment, we have undertaken to review the operation of the order in the two years after commencement.

I have already commented on the effectiveness of ASBOs, but they have been thoroughly examined on numerous occasions over the past few years, including by the Home Affairs Select Committee in April 2005. Specific areas of improvement have been identified and acted upon. Broadly speaking, practitioners, the communities they serve, and those communities’ representatives are happy with the policy, and it has been successful over the years as an essential tool for tackling anti-social behaviour. We are not complacent, however. We must also keep the policy under continuous internal review, and it was this process that identified, for example, the need to improve data collection.

I am grateful for the contributions to this debate. I am mindful that I might not have picked up all the points that I perhaps need to. In that case, I undertake to pursue them and to write to noble Lords. I am particularly grateful for the kind welcome that I have received. This is the first time we have sought to use the order-making powers of the Serious Organised Crime and Police Act 2005. There is clear justification for using the Act now to minimise operational constraints on tackling anti-social behaviour effectively. We intend to monitor the impact of contracting out, including through continued working with stakeholders.

On Question, Motion agreed to.