17. At the core of the Part 7 provisions is the concept of appropriate management practice. The point about the ASBN power given to the local authority is that it can require the landlord to carry out "action for the purpose of dealing with the antisocial behaviour" - in other words, management action. It must therefore be able to decide and define that action and, if necessary, defend its decisions in court. The sheriff will not apply a penalty for non-compliance unless satisfied that "having regard to all the circumstances relating to the relevant house, it would be reasonable for the landlord to take that action." So the ASBN should only specify actions which are appropriate and reasonable in the circumstances of the particular case.
18. The 2004 Act does not give precise definitions of appropriate management action. If it did, the local authority's power to act would be severely hampered in many cases because the statutory definitions could not possibly anticipate each circumstance that might arise. The types of action that were referred to in the development and scrutiny of the legislation include:
- Enforcing terms of the tenancy agreement
- Setting clear standards
- Advising tenants (for example, on reducing noise nuisance)
- Investigating complaints
- Requesting the local authority to initiate an Antisocial Behaviour Order
- Providing information in support of ASBO proceedings
- Seeking an interdict
- Seeking possession at the end of the term of the tenancy
- Seeking possession on the grounds of antisocial behaviour
The Housing (Scotland) Act 2006 removes a barrier to the last of these in the case of assured and short assured tenancies. Whether or not a landlord engages an agent to manage the property on his behalf, the landlord still remains responsible for these actions.
19. This is a guide to thinking but is not an exclusive or exhaustive list. Other guidance as to what is commonly accepted good practice can be found in, for example, sections 1,2 and 4 of the good practice guidance published by Communities Scotland 3 , the Executive's Better Renting website 4 , which provides links to various other sources, and the Executive's antisocial behaviour website 5 . Other appropriate advice is available from organisations such as SAL or ARLA and other support services in the local authority area may be in a position to assist with suitable information.
20. As not all landlords will have internet access, authorities should consider providing hard copy extracts of guidance to applicants. The Scottish Executive also publishes housing information and rights guides for private landlords and tenants, copies of which can be obtained from the Scottish Executive Private Sector Housing Team (0131 244 5571) or by download 6 .
21. We recommend that, when considering whether to require a landlord to take management action, the local authority officer should consider the following key questions:
- What action, if taken by the landlord, is likely to make a difference to the antisocial behaviour that has been identified?
- Is it feasible for the landlord to take that action in the particular circumstances?
- Is it reasonable to expect the landlord to take that action?
- Are there other suitable options that would be less costly for the landlord?
- Could your decision on these matters be defended in court if necessary?
22. The answers to these questions will need to take account of the particular situation. Relevant factors are likely to include:
- the contract between the landlord and the tenant;
- the landlord's statutory rights;
- the tenant's circumstances (for example, his or her mental health); and
- the landlord's circumstances.
If there are actions that a landlord would normally take but the particular landlord feels unable to take them, for example because of frailty, then the landlord should take steps to ensure that these actions can be taken. An appropriate step might be for the landlord to engage an agent to act for him or her. Or it may be that the local authority can offer practical assistance that will resolve the matter satisfactorily without imposing a requirement on the landlord.