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16/12/2007

Of orthopaedic footwear and possession orders

Not a particularly significant case, but not one you see every day either. Nuisance by adverts for wigs, orthopaedic footwear, and dating agencies.

Accent Peerless Ltd v Kingsdon & Anor [2007] EWCA Civ 1314 was an appeal of an outright possession order on an assured tenancy. The possession order was made on the basis of Ground 14 Nuisance. The tenants, mother and daughter, both suffered from mental health disorders:

The main symptoms of their disorder were a hypersensitivity to noise, a propensity to exaggerate the effect of noise and other disturbances, agoraphobic tendencies, a tendency to misunderstand and chronic complaining.

So when their new neighbours undertook some apparently fairly extensive but reasonably conducted DIY work, the Kingsdons took action. From para 5:

i) Between November 2001 and September 2005 they made 36 complaints to the Environmental Health Department. There were also two complaints to the local authority ombudsman.

ii) They made 90 complaints to the Housing Association between September and November 2001. These complaints seem to have been communicated to the Dixons.

iii) They made a number of complaints to the police, prompting several visits by the police to the Dixons. The police seem to have concluded that the Dixons were taking all reasonable steps to be considerate neighbours. In the course of these complaints, the defendants made allegations that Mrs Dixon had been in Brookwood Mental Hospital and that they had been evicted from a previous property for dangerous DIY activities and noise harassment. These allegations were false. Over a period of 12 to 18 months the beat officer for the area, who at one point issued a warning under the Harassment Act, received almost daily faxes from the defendants, though they had dropped off dramatically a short while before the trial.

iv) The defendants procured the sending of unwanted mail shots and other advertising material by apparently filling in coupons with the victim’s address. The material which thereby arrived on the Dixons’ doormat included advertising for erotic material, an introductory agency, a wigmakers, cosmetic surgery and orthopaedic footwear. The Dixons found this upsetting and depressive.

v) What was described as the “last straw” happened in 2005. One of the defendants made an anonymous telephone call to Mr Dixon’s employers saying that he was not off ill because they had seen him working in his garden. At the time Mr Dixon was indeed off work and working in the garden, but it was pursuant to leave which had been agreed with his employer.

vi) One of the defendants wrote to the local MP, in Mrs Dixon’s name, about some European food supplement.

The Circuit Judge found that this constituted nuisance for the purposes of Ground 14 and that it was  reasonable to make an outright order in view of the likelihood of the nuisance continuing.

The appeal was dismissed on the basis that it was proportionate to make an outright order and the Judge was within his discretion, having heard and considered evidence on a supposed abatement of incidents. The Court of Appeal found that the Judge’s decision

falls into the category of decisions with which this court will not interfere absent a manifest error of principle, a failure to take a relevant consideration into account or the taking into account of an irrelevant consideration.

Given the evidence of the appellants’ mental health issues, one wonders how strongly a Disability Discrimination defence was run – reason for eviction being related to the disability. However, the County Court Judgment says that in making the order, the Judge was satisfied that

these defendants will not be discriminated against under the Disability Discrimination Act.

I would imagine that there could have been a strong counter of justification to a DDA argument. But none of this is raised in the appeal.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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