Consultation by the Department for Work and Pensions on Housing Benefit Sanctions and Anti-Social Behaviour

Response by the Child Poverty Action Group

The idea of a sanction on housing benefit to penalise claimants whose behaviour is considered "anti-social" was introduced in the Government's green paper on housing, "Quality and Choice; a Decent Home for All"[Footnote 1] , published in 2000. It was raised again in the Home Office White Paper "Respect and Responsibility - Take a Stand Against Anti-Social Behaviour", published in March 2003. Frank Fields' Private Members Bill, which attempted to introduce similar measures failed in 2002. The Anti-social Behaviour Bill currently before the House of Lords includes measures to make it easier for social landlords to obtain injunctions against, and evict, "anti-social" tenants.

This paper sets out CPAG's response to the proposals set out in the Department for Work and Pensions' paper; "Housing Benefit Sanctions and Anti-Social Behaviour - A Consultation", which we refer to as "the consultation paper".

CPAG sympathises with the victims of anti-social behaviour. We support the positive steps taken by local authorities and others to work with perpetrators of anti-social behaviour and seek to change it. We recognise that civil and criminal sanctions may also be required to deal with anti-social behaviour. However, for the reasons set out below, CPAG strongly opposes these proposals.

1. Rights and Responsibilities – does this apply to Welfare Rights?

Generally

1.1 CPAG opposes the proposal that entitlement to a welfare benefit should be made conditional on responsible behaviour. We do not believe it is possible to weigh rights to benefits against responsible behaviour without undermining the basis on which social security operates. The purpose of welfare benefits is to provide a safety net, and they should not be used as a tool for punishment.

1.2 In our view that the fact that claimants may behave irresponsibly is not a reason to remove their right to subsistence benefits. The Partial Regulatory Impact Assessment annexed to the consultation paper suggests that sanctions will be set at a level which mean arrears are unlikely to accrue to a sufficient level for claimants to be evicted. As the consultation paper gives no indication of the likely level of the sanction it is difficult to know what the basis for this suggestion is. It is submitted that it underestimates the likely impact of these measures on claimants, many of whom will be living on subsistence level benefits. If their housing benefit is reduced, by whatever amount, claimants will face the choice between making up the difference and reducing themselves and their families to living below subsistence, or losing their homes. This is draconian.

1.3 It is submitted that the consultation document also dismisses too lightly the effects of homelessness on families with children [Footnote 2]. Children living in families labelled as "anti-social" will inevitably suffer from poverty and social stigma; the consultation paper gives no consideration to how they can be protected from this. The risk that families with children could be made homeless is contrary to the government's stated aim to eradicate child poverty in a generation [Footnote 3]. It also contradicts statements made by the minister in the debate on the second reading of Frank Fields' bill;

"Consideration also has to be given to dependants, especially children. We should not seek deliberately to make children homeless - and therefore in extremis, taken into care - just to punish their parents. We must ensure that all dependants are fully protected." [Footnote 4]

1.4 It is also contrary to the government's housing policy; "Our aim is to offer everyone the opportunity of a decent home and so promote social cohesion, well-being and self-dependence." [Footnote 5]

2. How do we define what is acceptable behaviour?

2.2 It seems fair to characterise the kinds of behaviour listed on p 2 of the Consultation Paper as "anti-social", although definitions vary. A wide spectrum of behaviour is covered, from serious criminal offences, to much more trivial matters. Further, perceptions of whether behaviour falls within any of these categories may be highly subjective. It may be very difficult to distinguish between behaviour which is really anti-social, and situations where there is simply a difference in lifestyles. However, the proposal is that receipt of housing benefit be made conditional on "good behaviour" - but no suggestion is offered as to how this would be defined. It is submitted it would be very difficult to come up with an acceptable definition. It is also submitted that it would be unfair to impose the same housing benefit sanction regardless of the gravity of the offence.

3. Claimants who cannot control their behaviour

3.1 The consultation paper assumes that claimants whose behaviour is considered "anti-social" (a list is set out on p 2 under para 5) are able to make choices about the way they behave. In certain cases of illness or disability, responsible behaviour may be beyond the claimant's control. In those circumstances it would clearly be wrong to take away the claimant's right to benefits. It would be meaningless and counter productive to try and make this right subject to "responsibilities" the claimant cannot meet.

3.2 Where anti-social behaviour either by themselves or by others is beyond the claimant's control, housing benefit sanctions would not have a deterrent effect. Unpleasant and even intolerable though a person's behaviour may be to those around them, sanctions could not possibly help in these circumstances.

3.3 Claimants may receive disability living allowance, income support, or incapacity benefit precisely because they are disabled or ill in such a way that they are unable to control their behaviour [Footnote 6]. Many of these claimants will also receive housing benefit. Two thirds of HB claimants receive either income support or minimum income guarantee [Footnote 7]. (There do not seem to be any statistics on how many receive DLA) In these cases, a "good behaviour" requirement for HB would directly contradict the conditions of entitlement to disability benefits. This would surely be unworkable and contrary to the government's care in the community policies.

4. Are Housing Benefit Sanctions likely to be a helpful way of dealing with anti-social behaviour?

4.1 CPAG would prefer to see anti-social behaviour dealt with by finding out what is causing it, and providing the necessary support to help deal with it [Footnote 8]. Where this fails, there is already an adequate range of civil and criminal sanctions available [Footnote 9]. There is no reason to think that housing benefit sanctions would act as a deterrent where existing penalties do not or that they would strengthen any existing deterrent effects. Sanctions will not tackle the causes of anti-social behaviour. In practise they will have the effect of impoverishing claimants - in some cases they may result in them being made homeless. There is no reason to believe impoverishment and homelessness make people behave better, in fact the reverse is likely to be true.

4.2 Homeowners and tenants not in receipt of housing benefit may also behave in ways considered "anti- social". There is no justification for picking out housing benefit claimants who behave anti-socially and imposing sanctions on them that do not apply to others who behave in the same way.

4.3 The courts are already charged with dealing with remedies for anti-social behaviour. Imposing housing benefit sanctions on top of this will unfairly single out housing benefit claimants and make them liable to a double punishment.

4.4 The proposals would make claimants responsible for the behaviour of visitors and family members. Any test for imposing a penalty on a claimant for the behaviour of others, would need to look at the culpability of the claimant. Claimants with mental health problems may not be able to control the behaviour of their visitors. Those suffering domestic violence may also be unfairly penalised.

4.5 Non-dependant deductions have been widely criticised for complicating housing benefit and leading to debt. Housing benefit sanctions will exacerbate these problems and will further complicate the scheme. This will be counterproductive in view of recent efforts to simplify the scheme by streamlining rent restrictions.

4.6 It appears from the consultation paper and from questions asked in the House of Commons [Footnote 10] that the impetus for these proposals may come partly from comments made by neighbours aggrieved by the anti-social behaviour of others, who feel they should not receive assistance from the state [Footnote 11] . Whilst we may sympathise with their concerns, we question whether this is a reasonable basis for making policy. Aggrieved neighbours are not likely to be fully informed about the circumstances of those committing anti-social behaviour, nor is this an objective measurement of the extent of the problem or proper evaluation of the likely effects of the proposals.

Options for a sanction for anti-social behaviour – Courts or Local Authorities

CPAG's view is that both these options are deeply flawed. This is for the following reasons:

1. A Court based sanction

• All civil and criminal proceedings which relate to "anti-social behaviour" would need to be identified. Those bringing the proceedings will not necessarily have any knowledge of or interest in the claimant's receipt of benefits.
• When deciding what penalty to impose for the proceedings already before it, it is not clear whether the court will know whether the claimant is on HB or not as it may have no relevance to the proceedings before them.
• If the court does not know whether the claimant is in receipt of HB, then any penalty it imposes cannot take account of a further HB sanction. This will mean that HB claimants will be penalised twice for the same offence. If the court does know, it may want to allow for the further sanction in the penalty it imposes on HB claimants. However, as local authorities will have the power to mitigate the sanction, the court cannot know exactly what further sanction will be imposed, and must make its own decision on the basis of guesswork. Either way, the court's authority in the principal proceedings will be undermined.
• In many cases, the penalties in the proceedings before the court will be such as to render a sanction on housing benefit pointless; for instance if the claimant is evicted, or imprisoned, there will be no point in a further sanction on their housing benefit. If they are fined, the court will already have given consideration to how much the claimant should pay; a further HB sanction may undermine this. If a suspended possession order is made, a sanction on the claimant's HB may make it more difficult for them to meet the terms of the order.

2. An administrative sanction

• It is our understanding that the collection of evidence for dealing with housing nuisance cases is already extremely costly in terms of local authority resources. The consultation papers does not provide any spending assessment on how much additional local authorities would need to enable them to police these measures fairly.
• The enforcement of these sanctions and the view local authorities take on reducing sanction for hardship may vary locally depending on the enthusiasm of the particular council [Footnote 12]. The Consultation Paper does not seem to se this as a problem - indeed under "Triggers for use of sanction" at paragraph 26 it suggests that these powers could be applied on a discretionary basis or only in areas where anti-social behaviour reaches a certain level. However, this will result in sanctions being applied on an arbitrary basis depending on where the claimant lives. This only adds to the unfairness of the proposals.
• The consultation paper proposes support for tenants at the initial stage, but does not set out what extra resources will be made available for providing this support. Shelter's briefing paper on this issue says that resources are currently scarce.
• The Consultation Document is silent as to how Local Authorities are expected to fit these powers in which those they already have. Would they be used in preference to seeking possession orders, or injunctions or as a first step or in addition to these?
• Local Authorities already have difficulty administering HB efficiently - a DWP press release dated 15/5/03 shows that 42 authorities in Britain take more than 80 days to process claims. These proposals will add to that administrative burden. Furthermore and importantly, the Local Government Association opposes these proposals.

Conclusion

In our view for the reasons set out above, these proposals do not meet any of consultation document's own "key principles for success" set out at p 4. In brief these are; deterrent effect, speed and decisiveness, fairness, practicality, reduction of social exclusion, compatibility with the ECHR. On the contrary they are likely to be ineffective, uncertain, arbitrary, unfair, impractical, and will have the effect of increasing social exclusion. We would urge the Department to abandon them.

Footnotes
1.Although the idea contradicts others in the same green paper - see below. [back to text]
2. "Although a local authority has no obligation to accommodate someone who, by their own actions, has made themselves intentionally homeless, families with children and other vulnerable groups in this position would be entitled to advice and assistance to help them find alternative accommodation, and would be provided with temporary accommodation for a short period to give them a reasonable opportunity to find something for themselves." (p 4) Vulnerable claimants are likely to have serious difficulties in finding "something for themselves", and the consequences of this for families with children will be dire. [back to text]
3. See "Opportunity for All" Command Paper no 5260 [back to text]
4. Malcolm Wicks 19/4/02 – Hansard Column 881 [back to text]
5. Quality and Choice: A decent Home for All – The Housing Green Paper [back to text]
6. For instance s 73(3) of the Social Security Contributions and Benefits Act 1992 entitles a claimant to the higher rate of the care component of DLA if s/he displays severe behavioural problems. The schedule to the Social Security (Incapacity for Work)(General) Regulations 1995 contains a number of descriptors which relate to alcohol related or behavioural problems which contribute towards the test for whether they will count as incapable of work and therefore entitled either to incapacity benefit or income support on the basis of incapacity for work. For instance paragraph 18(b) refers to where a claimant gets upset by ordinary events and this results in disruptive behavioural problems. Receipt of income support is an automatic passport to housing benefit entitlement. [back to text]
7. Footnote to govt stats [back to text]
8. Positive examples include the Dundee Families Project and Rochdale council's inclusion project run with Shelter. See Guardian Society for June 4th 2003 "No hiding place" by Matt Weaver pp 2-3. The article cites an assessment by Glasgow University which found that the Dundee Families project cost £345,000 a year, but saved £462,000 in legal bills and the cost of taking children into care. [back to text]
9. "Neighbour nuisance, social landlords and the law", a report by Caroline Hunter, Judy Nixon and Sigrid Shayer, found that "Landlords now have extensive powers to tackle anti-social behaviour and there was little evidence to support the view that further legal reform is required. (From "Social landlords' use of legal remedies to deal with neighbour nuisance" – summary at www.jrf.org.uk) [back to text]
10. See for example question from Mr Plaskett, Hansard 13/1/03 column 395 [back to text]
11. Paragraph 13 refers to "people's sense that it is profoundly unfair to provide continuing sense for the housing costs of people who behave without regard to their neighbours." [back to text]
12. See for instance the report of the Social Exclusion Unit's PAT Team 8 2000 at para 4.18, which points out the inconsistent approach taken by different local authorities. For instance 75% of LAs in the North East use introductory tenancies compared with 35% of LAs in the North West. 29% of LAs in London use exclusion lists for anti-social behaviour, compared with 61% of LAs in the East Midlands. [back to text]

Sarah Clarke
Solicitor
Citizens' Rights Office
Child Poverty Action Group
94, White Lion Street
London N1 9PF

sclarke@cpag.org.uk

12 August 2003