The decision by HHJ Luba QC carries a warning to all landlords taking action against their tenants to take care with the content of their evidence and the way it is presented. Failure to do so could have serious consequences.
Rosebery Housing Association Limited v Cara Williams and Elaine Williams (2021) EW Misc 22
Rosebery sought an anti-social behaviour injunction pursuant to Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 against their disabled tenant (CW) and her mother (EW). The matter was heard in the County Court before HHJ Luba QC. EW offered an undertaking to the Court. CW raised a counterclaim of disability discrimination under the Equality Act 2010.
Due to a “mass of material” filed by Rosebery in support of its application, it was ordered to file six example allegations against CW. Rosebery failed to prove, on the balance of probabilities, that five of the allegations were made out. The criticisms levied against it by HHJ Luba QC included:
- a lack of corroborating contemporaneous records of the alleged incidents e.g. emails, reports, diary sheets or complaints;
- a failure to raise the specific alleged incidents with CW In a timely manner (or at all) before issuing proceedings; and
- a failure to rely on the specific incidents in witness evidence.
The sixth allegation against CW, a short period of noise nuisance, was made out. However, action had been taken to remedy the nuisance which had not resurfaced. It was not deemed just and convenient to grant an injunction on the sixth allegation alone.
HHJ Luba QC stated that “the claim has been a forensic disaster for Rosebery.”
CW has Obsessive Compulsive Disorder (OCD) which manifests itself by obsessive and uncontrollable filming of her surroundings and by driving up and down her street. This behaviour was central to the injunction proceedings.
It was accepted that this behaviour may cause a nuisance to CW’s neighbours. However, CW argued that the behaviour arose from her disability and that the injunction was not a proportionate means of achieving a legitimate aim and the threat of court action had worsened her behaviour.
Rosebery had completed “Equality and Human Rights Impact Assessments,” concluding that legal action could be taken against CW and no less drastic action would tackle her behaviour. Rosebery argued that it sought the injunction for the ‘targeted’ filming of neighbours, which could be differentiated from her disability-related filming, and that the injunction was proportionate. HHJ Luba QC disagreed.
The claim against CW was dismissed and her counterclaim was upheld. CW was awarded £27,500.
As a county court case, the judgment is not binding. However, it offers an example of what not to do when seeking an injunction against disabled or vulnerable tenants.
The message coming from the judgment is the need for better and focused preparation and an objective assessment of all the available information and not just their own. Preparation is key. Housing providers should:
- Keep detailed and contemporaneous records of all anti-social behaviour (ASB)
- Focus on specific incidents that can be substantiated by the evidence
- Raise allegations of ASB to alleged perpetrators in a timely manner, offering an opportunity to respond before issuing proceedings
- Keep ASB policies under regular review and follow them closely when an issue arises
- Keep Equality policies under regular review and offer training to housing staff
- Consider whether proposed action is proportionate – would less drastic action resolve the issue?
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