Lessons from the case of Rosebery Housing Association Ltd v Williams & Anor (2021)
A housing association has been heavily criticised by a Judge in an anti-social behaviour case in which it sought a civil injunction against two residents. The housing association was ordered to pay damages of £27,500 for a successful counterclaim of unlawful disability discrimination.
Part 1 of the Anti-Social Behaviour Crime and Police Act 2014 (the Act) provides social housing providers and certain other public bodies with the power to seek civil injunctions to tackle anti-social behaviour and nuisance. Whilst these injunctions can be an effective tool, this recent case provides a stark example of how not to use them, particularly when dealing with a disabled tenant.
Civil Injunction Claim
The Defendants were mother and daughter, Cara and Elaine Williams. The Claimant, Roseberry Housing Association, had received complaints from other residents about both Cara and Elaine, since around 2017. Cara suffered from obsessive compulsive disorder, which manifested in her undertaking repetitive rituals and behaviours such as filming her surroundings.
The housing association sought an injunction under Part 1 of the Act in June 2020. It alleged that Cara had been verbally abusive to neighbouring residents and had filmed and recorded them with the intention to distress. The claim was defended by both tenants, and both advanced a counterclaim based on alleged breaches of the anti-discrimination provisions in the Equality Act 2010.
Contained within the supporting witness evidence to the injunction application were more than 100 allegations spanning over two years. The housing association had therefore been ordered to produce a Scott Schedule setting out six example allegations for trial.
Before the trial, Elaine agreed to an undertaking and the claim proceeded against Cara alone. After hearing evidence for both parties His Honour Judge Luba QC determined that only one of the six allegations was made out; a less serious allegation of noise nuisance on one occasion with the other five allegations being said to have no sustainable evidential ‘legs’. The Judge had no confidence in the accounts of either of the residents called by the housing association, stating ‘each had, to some extent at least, either exaggerated their evidence or embellished it.’ The Judge was given the firm impression that each had lost any sense of perspective and were determined to ‘bring Cara down’.
The noise nuisance was historic and there was no suggestion of any repetition and therefore the Judge held that the “just and convenience” test under the Act was not satisfied. He went on to say that any reader of the judgement would find it ‘extraordinary that this claim has been pressed to trial in this way by a responsible social landlord’. The Claim was described as a forensic disaster for the housing association.
The focus of the trial, therefore, moved to the Defendant’s counterclaim. The medical evidence proved, quite clearly, that Cara’s severe OCD was a disability under the Equality Act 2010 and that it manifested itself in her compulsive need to film her surroundings. Cara was not ‘in control’ of her behaviours and could not agree to stop them. The judge was satisfied that the injunction application arose as a consequence of her disability, as it was clear on the evidence that the central allegation was Cara filming.
The judge noted the impact that Cara’s behaviours would have had on others noting “neighbours and members of their families will have felt intrusion and lack of privacy as a result of the constant filming”. This was in addition to the ‘odd’ behaviours which led to Cara obstructing the street with vehicles and parking issues.
Due to the ongoing allegations both by and against Cara there had been multi-agency meetings involving the local authority, police, and mental health services. The Police report from one such meeting recorded that “the ongoing disputes with neighbours will end in Cara committing suicide or that she would be a victim of a homicide”.
Nevertheless, the housing association decided to pursue an injunction against Cara and her mother. In a detailed judgment the judge concluded that doing so was not proportionate. The housing association could and should have done much more including ensuring its staff were more familiar with OCD. The housing association did not involve any of the major charities or advice organisations concerned with the condition and had not taken its own medical advice. HHJ Luba QC held that ‘“If ever there was a case in which the social housing provider needed to acknowledge, become familiar with and then discharge the public sector equality duty with vigour it was this one.’
The claim of unlawful disability discrimination therefore succeeded and damages of £27,500 were awarded.
The case provides some key lessons in tackling allegations of Anti-Social Behaviour, particularly against tenants with mental health issues. It is vital that social landlords properly consider the impact of a tenant’s disability when considering what action to take. That may include taking advice from other organisations and/or obtaining independent medical advice. Social landlords must also ensure their staff have the appropriate training and that any staff involved in decision-making are fully aware of all of the relevant facts of a case.
The housing association was also heavily criticised for failing to put the details of the allegations to the Defendants at an early stage. The first time they did so was in a notice seeking possession containing 123 allegations, some of which were years old. The judge repeated guidance given in an earlier case stressing the importance of a landlord giving a tenant contemporary notice of the details of any complaints. This is clearly key to any investigation. Further the housing association had failed to properly consider and investigate the counter allegations made by the Defendants: again, something which is key to proper investigation and subsequent decision-making.
The decision to pursue an injunction in this case was described by the judge as ‘extraordinary’ in the face of compelling medical advice that an injunction was more likely to inflame the situation on the ground rather than bring any relief. The housing association could have diverted its attention to the real, effective remedy of ensuring that Cara received the help, support and treatment she needed, rather than pressing on with its detrimental and costly decision to seek an injunction under the Act.
Properly reviewing and assessing cases at each stage and effectively recording the decisions taken is absolutely vital particularly when dealing with vulnerable and/or disabled tenants. You should always be prepared to consider changing tack or stopping any ongoing action if the evidence demands it.
The team at Hugh James have a wealth of experience dealing with the complexities of the Equality Act 2010 and the additional safeguards needed when dealing with disabled tenants. As this case demonstrates early specialist legal advice is essential.
If you would like any further information or advice in relation to any of the topics raised in this article, contact our dedicated Housing Management team.