This is a very interesting case in which a social landlord's application for an injunction against a tenant accused of anti social behaviour was dismissed and the landlord was ordered to pay the tenant £27,500.00. It makes important reading at a time when landlords are making a lot of applications for injunctions like this in circumstances where they arguably should not be.
I should point out at the beginning of this post that I am biased. I am a solicitor who acts for Defendants in cases like this. What follows may therefore come across as critical of and lacking sympathy for landlords who have to deal with reports of anti-social behaviour and the lawyers who act for them.
This case concerned an application for an injunction under Anti-social Behaviour, Crime and Policing Act 2014 by a housing association against a tenant and her mother to stop them from engaging in alleged antisocial behaviour. The tenant counterclaimed for a declaration of disability discrimination and compensation on the basis that her behaviour arose from a medical condition and that her landlords were treating her adversely as a result of that.
The Judge considered the housing association’s evidence and found that almost all of the allegations of anti social behaviour had not been made out. The only instance of antisocial behaviour was when the tenant played her music loudly so as to drown out the noise of music being played by her neighbour. The injunction application was dismissed and the tenant was awarded £27,500.00 damages to compensate her for the disability discrimination.
The mother settled the case by agreeing to give undertakings to the Court not to behave in the manner alleged.
The tenant suffered from Obsessive Compulsive Order which amounted to a disability for the purposes of the Equality Act 2010. Her condition led to her behaving in a manner which her neighbours found irritating. She had a compulsion to film what was happening around her on her mobile phone. She also had a habit of driving up and down the street and sitting in the car outside her home. Neighbours responded to this by subjecting her to abuse and by complaining about her to the landlords and the police. The tenant also complained to the landlord and police about the behaviour of the neighbours. After some years of this the landlords decided to apply for an injunction against the tenant.
The Legal Issues
In order to obtain an injunction against the tenant the landlords under the Anti-social Behaviour, Crime and Policing Act 2014 the Judge had to be satisfied that she had behaved in an antisocial behaviour and that it was just and convenient for him to make an Order preventing her from doing so in the future. The Judge found that one minor allegation of anti-social behaviour had been made out. He therefore had to decided whether it was just and convenient to grant the injunction. He found that it was not for seven different reasons - see paragraph 76. The claim was therefore dismissed.
In order to successfully counterclaim for compensation for disability discrimination the Judge had to be satisfied the landlord had unlawfully discriminated against the tenant causing injury to her feelings. He found that they had and that the damages should be significant. Damages in this type of cased are assessed with reference to the Vento Bands as used more commonly in Employment Tribunals. In this case the Judge considered that the case fell into the top band and awarded £27,500.00.
The tenant also claimed damages for harassment under Equality Act 2010 but this part of the claim was dismissed.
Takeaway Points From the Judgment
- The Judge was critical of the fact that this case had ever been brought (see paragraph 68) and of the fact that the landlord staff did not understand the legal issues in the case in particular disability discrimination.
- The Judge was not prepared to give any weight to the hearsay evidence of one of the neighbours. She had not come to Court and the landlord had served a hearsay notice. The Judge pointed out that this notice did not set out any good reason for the witness not coming to Court to give evidence and referred at (paragraph 47)to the warnings given about relying on hearsay evidence by Brooke LJ in Moat Housing at paragraphs 135, 136 and 140
- The Judge criticised the size of the Trial Bundle (1,500 pages followed by a Supplementary Bundle at Trial) and Bundle of Authorities (350 pages). He stated at paragraph 35 “Undaunted by the glut of material already put before the Court, counsels’ closing submissions referred to yet further material not in either bundle. This must not be repeated in any future county court trial in this class of case”. This means that when preparing and agreeing bundles the lawyers should be include only relevant documents and avoid the temptation felt by those acting for council’s and housing associations to attach (what often seems like) their whole file of papers to the Particulars of Claim and then again to their witness statements.
This case is in many ways typical of the way in which social landlords often pursue applications for injunctions under the Anti-social Behaviour, Crime and Policing Act 2014. I believe that if so many of these cases did not settle there would be more judgments like this. The common characteristics include:
- The landlord’s staff have responded to the complaints made about a tenant by taking sides in a dispute and treating the tenant whose side they are not on as the enemy. This is often due to pressure which they face from the complainant neighbours which often includes complaints to their managers or inquiries from an MP about their failure to take action. They are therefore often intimidated by the complainants and feel compelled to be seen to take all possible action against and show as little sympathy as possible for tenant complained of so as to avoid further criticism of their role. It is notable that many of these sorts of cases involve complaints being made for many months or even years before the landlords take action. By then the complainant neighbours will be at their wits end and putting considerable pressure on the landlord to take action.
- The landlord’s staff do not understand the legal issues involved in dealing with disabled tenants who may behave in a way that distresses their neighbours. This includes not being aware of their own policies and procedures. Those policies often appear to have been written by senior management or outside consultants so that boxes can be ticked as to whether the organisation has such policies and procedures in place but then largely ignored. Even if staff are aware of issues around disability they will ignore these on the basis that the behaviour of the tenant being complained out is such that they can only be shown zero tolerance which then means zero understanding and a belief that the action taken is proportionate.
- The landlords and their lawyers produce witness evidence which tends to repeat verbatim the complaints made by the neighbours without scrutinising them. The neighbours are not told that they will need to come to court to give evidence and be cross examined at trial but are advised that it should be possible not to do so and give hearsay evidence on the basis that they are afraid of the tenant complained of or would find it distressing to come to court.
- The solicitors acting for the landlords have not given them appropriate advice about the weakness of the case or the fact that pursuing it amounts to discrimination causing considerable distress to a disabled tenant who has already been harassed by those complaining against them. If such advice is given but is ignored there is little that the solicitor can do other than continue with the claim. By the time the solicitors are instructed the legal proceedings may already have been issued by the client and brought to them after the Defendant obtains representation. The individual solicitors will often feel under pressure not to upset large corporate clients who might take their portfolios of work to other tougher solicitors. The loss of such clients is not likely to impress their firm’s management. This leads to the solicitors adopting the role of attack dogs who will have no truck with talk of disability discrimination or other nonsense raised by those acting for Defendants given the appalling behaviour of the Defendant.
- The barristers acting for the landlords are also unable to provide advice or require the lay client to act on it so as to prevent disasters of the kind which happened in this case. By the time they are instructed the case will often be well on its way to trial and advice along the lines of “this case should never have been brought” is likely to cause irritation if not personal offence to their instructing solicitors and lay clients. They are left with little choice but to soldier on and make the best of a bad job and leave it to the Judge to give the advice.
Lessons From The Case
The lessons for social landlords arising from this case are that they should ensure that staff, including management are fully aware of the need to act fairly and decisively when dealing with complaints of anti social behaviour. They should carry out proper inquiries at an early stage and make findings of fact and plans of action. All staff dealing with these matters should be properly trained on the law relating to anti-social behaviour and disability and be aware of their own policies. Checks should also be put in place for proper assessments to be carried out before proceedings are issued including getting a written Advice from a specialist barrister. They can advise on the merits of the case rather than just being asked to represent the landlord at a trial which may only be weeks or days away.
The main lesson for landlord solicitors of cases like this is to provide bold advice to landlords who have applied for injunctions or want to do so in in circumstances like those in this case. I may be being unfair here as it may well be that they are already providing such advice but it is not being followed. I do get the impression though from the aggressively worded correspondence I receive from solicitors acting for landlords in cases like this that they have taken on the role of attack dog rather than wise counsellor.
The lessons for solicitors acting for Defendant solicitors are not to be deterred from defending disabled clients facing these types of actions and should follow the very impressive examples of the Defendant solicitors in this case. It is often tempting when provided with dozens of pages of witness evidence against a client that there must be something in it or that their can’t be so much smoke without some fire. The evidence provided by the Claimants should be subjected to the level of scrutiny applied by HHJ Luba QC in this case and not taken at face value. Witnesses should be required to attend at Court and objection taken with hearsay evidence. Where a client has a possible disability, specialist medical evidence should be obtained and a discrimination counterclaim considered from the start of the case.