Housing Association ordered to pay tenant £27,500 after failings in ASB claim


28 January 2022

December was a busy month for the courts considering the impact of the Public Sector Equality Duty. We had the Metropolitan Housing v TM case on 21 December, preceded by this case involving Rosebery Housing and Williams on 10 December. The later was heard at Central London County Court, and although it is only a county court decision judgement was handed down by HHJ Luba QC and contains some damning remarks about Rosebery’s handling of the case.

Rosebery Housing Association Limited v Cara Williams & Another [2021] 12 WLUK 464

Facts

Rosebery Housing Association (RHA) was the landlord of Cara Williams, who was a disabled person and lived at the property alone but looked after by her mother as sole carer. Both were alleged to have engaged in anti-social behaviour and RHA issued proceedings for an injunction. The proceedings were defended and a counterclaim raised alleging that pursuit of an injunction amounted to unlawful discrimination under the Equality Act 2010. Ms Williams has obsessive compulsive disorder, which causes her to film her surroundings regularly, something of an irritant to her neighbours.

The tenancy agreement contained the usual covenant aimed at preventing the tenant from causing a nuisance to neighbours. There had been allegations of ASB made against Ms Williams and her mother for several years, escalating in 2017. In late January 2020, Rosebery wrote to Ms Williams setting out the nature of the complaints it had received regarding her behaviour and giving her “one last opportunity” to avoid legal action by desisting from her alleged misconduct.

A Notice of Seeking Possession was served listing 123 allegations of ASB running from July 2018 to April 2020, and in June 2020, Rosebery issued a claim for an injunction against Ms Williams and her mother seeking to restrain her from causing nuisance to four of her neighbours. In general terms, the allegations contained in the volume of witness statements was that Ms Williams had been verbally abusive towards her neighbours, had filmed them with the intention of causing them distress and played music at an unacceptable volume. Given the extent of material and allegations, RHA was ordered to prepare a Scott Schedule setting out six example allegations for the trial which, if proved, would be taken as indicative of the behaviour complained of.

For the trial, the court was provided with a two-volume trial bundle exceeding 1500 pages of documents plus a further supplementary bundle was produced. In addition, each counsel provided full and helpful skeleton arguments, although less helpful was the provision of a joint bundle of authorities and materials containing another 350 pages. The court was clearly not impressed by such an overload of documents and even concludes with the following cautionary note, “This must not be repeated in any future county court trial in this class of case".

At trial, only one of the six sample allegations relied on was proven, which concerned an allegation of noise nuisance, which had since stopped. The evidence of the neighbours was found to be ‘exaggerated or embellished’.

In giving judgement, HHJ Luba QC was critical about the way RHA had pressed ahead to trial. At para 78 of his judgement he noted:

“When advancing its case on only six sample allegations one might have expected (RHA) to select ‘typical’ instances from the mass of material on which it thought it was able to draw. The six samples would have each been the subject of clear, direct, corroborated evidence from witnesses who could be called. Each example would have had a clear ‘audit trail’ cross-referenced to a contemporaneous note or record or copy of the ‘victim’s complaint’ followed by material showing that it was put to Cara at the time without any proper explanation in response. To the fore, one might have thought, would be matters in respect of which police officers, housing staff or council officials could give direct evidence. In the event, five out of the six allegations selected as examples had no sustainable evidential ‘legs’.”

The court held that it was therefore not just or convenient to grant the injunction sought.

On the counterclaim, the report of the consultant psychiatrist described Ms Williams’ OCD as “significantly handicapping her to a degree that has a long-term substantial effect on her day-to-day life”. Her condition manifests itself in the "extensive and obsessive filming of her surroundings both within, and when she ventures out from, her home". The expert acknowledged that her behaviour appears “mad” and “anti-social” to others who, understandably, do not know of, or have insight into, her condition.

S.149 Equality Act 2010 casts a public sector equality duty on public bodies, or private bodies carrying out public functions, such as RHA. It relevantly includes the following:

  • The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
  • Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to:

(a) tackle prejudice, and

(b) promote understanding.

The lead officer for RHA acknowledged that he did not know the terms of s.149 and was not familiar with the Public Sector Equality Duty. Not a useful admission when both of the proportionality assessments bore his name. Given that the court has already found that it was not ‘just and convenient’ to grant any form of injunction, the court held that it could not have been proportionate to press ahead with a remedy which was not just and convenient for a court to grant.

RHA of course had a policy for dealing with ASB complaints. The policy contained specific arrangements for recording, transmitting and acting upon complaints. However, the court found it had not been operated as intended. Not least, when allegations are received, they should have been logged, subject to preliminary scrutiny and then, as they arise, are put to the alleged perpetrator. The court judgment notes that RHA only passed on details of the complaints which had been made against Ms Williams from 2018 to the spring of 2020 in a deluge of 123 allegations served late April 2020. The judgement records that is exactly what should not have been done.

Accordingly, the counterclaim was successful and damages were awarded in the sum of £27,500 on the basis that the discriminatory conduct had extended over a considerable period with very significant adverse impact on Ms Williams as the disabled person.

Comment

Social landlords should take careful note of the criticisms levelled at RHA in this case, not only that their processes failed to follow their own policy, but also their conduct of the proceedings. Compliance with your Public Sector Equality Duty is not just a tick box exercise. In this case had the neighbours been aware of the manner in which Ms Williams OCD manifested itself, they may have been more understanding of the situation.

Ms Williams had been treated as the perpetrator when in fact the court found that largely, she was the victim. No steps had been taken to protect Ms Williams, such as considering a move or attempt to foster good relations with neighbours.

It is vital that staff completing proportionality assessments have received appropriate training in and are familiar with the Public Sector Equality Duty.

Finally, when preparing a schedule of sample allegations, choose the best ones which can be corroborated by evidence from witnesses who can be called. Each example should have a clear ‘audit trail’, cross-referenced to a contemporaneous note or record or copy of the ‘victim’s complaint’ followed by material showing that it has been put to the perpetrator at the time without any proper explanation.

How can Birketts help?

Birketts have a specialist Housing Management Team to help our clients stay ahead. Our expert lawyers can advise on all aspects of housing and asset management from complex ASB claims, Equality Act defences, building safety issues, defending disrepair claims/EPA prosecutions, subletting/housing fraud cases, service charge disputes, s.20 consultation issues, applications to vary defective leases, to name but a few of the issues we can assist with. Our experts have decades of experience acting for Registered Providers and local authorities and offer a truly ‘one stop shop’ for the issues facing the sector. We have a dedicated and specialist team that deal with Right to Manage and enfranchisement issues.

If you have any queries regarding the content of this article or wish to discuss any issue regarding the management of your tenants or stock, please contact Clive Adams, Jonathan Hulley or any member of the Social Housing Team, to see how Birketts can help you.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2022.

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