Worthington & Anor v Metropolitan Housing Trust Ltd (2018) EWCA Civ 1125
The Court of Appeal on an instance of tenancy management going bad, very bad indeed. And the landlord losing a claim against them for damages for harassment under Protection from Harassment Act 1997.
As briefly as possible, Mr Worthington and Ms Parkin were assured tenants of Metropolitan HT in Chesterfield, two properties on the same estate. (Ms P moved from one to another in 2007).
Mr Worthington and Ms Parkin had for some time been concerned about antisocial behaviour in their neighbourhood. Indeed, prior to his tenancy in respect of 46 Hardwick Drive, Mr Worthington had been obliged to move home on no less than four occasions and Ms Parkin had, with the consent of the Association, installed CCTV equipment at her home at 28 Hardwick Drive for the purposes of her own security. In addition, Mr Worthington had formed what he described as the Arkwright Town Residents Group of which he was the self-appointed chair. He set up a website for this group on which he collated and stored evidence of what he considered to be unacceptable behaviour and from time to time he uploaded onto the site some commentary on the material displayed there.
Unfortunately the activities of Mr Worthington and Ms Parkin generated a considerable amount of hostility from their neighbours. The Association received complaints that Ms Parkin’s recordings were causing a nuisance and invading the privacy of other residents; and it was said that both Mr Worthington and Ms Parkin were taking inappropriate photographs of other residents including, in particular, children and other young people.
(We should be immediately clear that neither of these complaints were found to have any substance at trial. Ms Parkin’s CCTV was found to be used solely for her own protection and had been installed with Metropolitan’s permission.)
A couple of meetings apparently reassured MHT that the complaints were baseless, but nevertheless, in May 2007 their solicitors sent a letter to Ms P saying:
“…. On checking previous correspondence I note you were given advice from MHT’s solicitor about the siting of your camera and restrictions on the recordings. It would appear from the content of the complaint that you have ignored some of this advice and this may have serious implications for you.
I therefore ask that you redirect your camera so that it does not capture routine activities of children and young people. You are also asked to arrange for the removal from public display [of] images of young people where permission has not been given for their use. Please let me know when this has been done.
I regret that, if you fail to comply with these requests, I will have no option but to withdraw our consent to the fitting and use of CCTV cameras on our property and you will need to render them inoperable or take them down. …”
Mr W wrote to MHT protesting this letter. Nothing then happened until September 2007, when a new estate manager, a Mr Kotecha, was appointed by MHT. Ms P had moved from one address on the estate to another in August 2007.
Mr Kotecha began by visiting Ms P in September 2007 and telling her to take her CCTV down. After the position with regard to ASB had been explained to Mr Kotecha (and a complaint to his superiors) Mr Kotecha emailed Mr W saying
“Vanessa has forwarded me your email. We spoke yesterday about the CCTV Lynda has installed. Due to the nature of complaints and seriousness of the [sic] we are having to seek legal advice from our solicitors. As I explained to Lynda when I visited her on 6th September my advice to her was to remove them. She has failed to take my advice and complaints continues [sic] regarding the CCTV. The Association have to act on every complaint…”
The Judge at first instance found
that by this time the relationship between Mr Worthington and Ms Parkin, on the one hand, and Mr Kotecha, on the other hand, had become difficult, that Mr Kotecha had got a “bee in his bonnet” about Ms Parkin’s use of CCTV equipment and that he viewed information he had received from other residents about its use without any form of critical analysis. Further, the judge continued, those charged with the managerial responsibility for Mr Kotecha ought to have seen that he had got “the wrong end of the stick” and should have appreciated that his work required careful scrutiny and supervision, but that such scrutiny and supervision was not provided.
Mr Kotecha, however, instructed MHT’s solicitors, who wrote on 21 September 2007 to Ms P saying
Other residents in the neighbourhood have made complaints that you have been taking pictures of them and their children for no apparent reason. Our clients refute that the reason for you taking these photographs relates to your own security. These residents consider that their privacy is being infringed by your actions and our clients are investigating a possible breach of your tenancy with them. You have already been advised to move the cameras from the positions which they are installed but we understand that you have refused to do so.
So that our clients can assess the merits of the complaints against you as regards pictures being taken of third parties we request you disclose to us copies of all pictures you have taken using this equipment.”
And at the same time, the solicitors wrote to Mr W saying
We have been instructed by the above named who advise us of concerns that have been expressed to them about the use by you of CCTV cameras from within the premises at (xxxxx) that you rent from our client.
Other residents in the neighbourhood have made complaints that you have been taking pictures of them and their children for no apparent reason. These residents consider that their privacy is being infringed by your actions and our clients are investigating a possible breach of your tenancy with them. We are instructed to advise that our clients require you to remove the cameras from the positions where they are installed forthwith.
In the first instance our clients wish to assess the merits of the complaints against you as regards pictures being taken of third parties and we request that you disclose to us copies of all pictures you have taken using this equipment.”
Mr W didn’t have any CCTV equipment.
Mr Kotecha persisted, asking the police to attend Ms P’s property. The police officer saw the equipment and the views being recorded. Nothing came of this by way of police action.
Then
at the beginning of October 2007 the Association received, through Mr Kotecha, a petition and seven statements purportedly prepared by residents. The petition, apparently signed by around 80 persons, was headed:
“This petition is regarding Linda [sic] Parkin and Colin Worthington having cameras facing onto the children’s football field and also facing residents [sic] properties which we feel is invading peoples [sic] privacy. We would like Spirita to act on this immediately and take action to have these cameras removed with immediate effect.”
In fact, however, only a small proportion of the individuals who signed the petition were residents and the judge found that it had been produced on Sunday, 30 September probably at one of the junior football sessions.
As for the statements, these were produced by Mr Kotecha, after discussions with certain residents, in order to provide evidence for him to pass on to his managers. They contained complaints that Mr Worthington and Ms Parkin had installed CCTV cameras which were being used in a manner which amounted to an invasion of privacy; and that Mr Worthington had been seen taking photographs of children without any proper reason to do so and had created the impression that he was working for Spirita.
Mr Kotecha’s efforts resulted in a senior manager noting
“Lynda’s new home is only a couple of doors away from Colin Worthington’s home. Lynda and Colin now have 3 cameras each in their homes, and between the 6 cameras are filming a large area including several residents’ homes. We have received complaints from 5 households who feel that Lynda and Colin’s cameras are infringing their privacy. Formal statements are being taken from each of these households this week.
In addition, the local Beat Manager- PC Akeel visited Lynda’s home on Monday 24th September and reported back to us that Lynda’s cameras were filming the roundabout in the centre of Arkwright, and also the front door to the Spirita Arkwright office. We think that this is infringing the privacy of customers who may choose to visit the office. The Police have told us that they have had had numerous complaints from residents about the CCTV cameras, and while they cannot take action as the issue is a civil one, they are concerned and do want to see action taken to resolve the issues as soon as possible.
….
The advice from our solicitor [Martin Lee] is that, should the cameras not be removed and the footage not be supplied, we should seek an injunction against both Colin and Lynda to compel them to remove or resite the cameras.”
(A reminder. Mr W did not have CCTV installed. The police had not found that Ms P’s CCTV was invading anyone’s privacy.)
MHT then moved to a ‘case conference’. Recommendations from the chair of MHT’s Compliance Committee and another senior manager that there should be a visit to Ms P’s home to establish what the CCTV was actually recording were ignored, and no visit took place. In fact no investigative steps were taken.
Following the ‘case conference’, on 11 October 2007, MHT wrote to Mr W as follows:
Re: Tenancy Breaches
I am writing to you further to our recent correspondence about your CCTV system.
Despite your assurance that you do not have, and you have never had, CCTV cameras at your property we have evidence to suggest that cameras were in use at your property very recently.
In addition, Spirita have received a petition signed by some 80 Arkwright residents who feel that their privacy and that of their families is being invaded by your cameras.
This represents a serious tenancy breach and is causing considerable concern to members of the Arkwright community, Spirita and the Police.
On that basis I am writing to notify you that you will shortly be served with a Notice of Seeking Possession (NSP). In addition, Spirita intend to pursue legal action against you in this matter, and we will be taking legal advice from our solicitors on our next course of action.
A similar letter to Ms P stated
“We have evidence that your cameras are filming areas of Arkwright including the road, car park and field. This constitutes an invasion into the privacy of members of the public.”
As the Court of Appeal notes
Both of these letters were inaccurate in serious respects. In the case of the letter to Mr Worthington, he had never had CCTV cameras at his property; the petition had not been signed by 80 Arkwright residents; and he had committed no breach of his tenancy, let alone a serious one.
As for Ms Parkin, she did have a CCTV system but, as the judge found, it had been used only for the purposes of her security and not to invade the privacy of members of the public. In other respects, the letter suffered from the same deficiencies as that sent to Mr Worthington.
There were subsequent letters from MHT’s solicitors in November 2007, which, while admitting that Mr W didn’t have CCTV, persisted in an (erroneous) accusation that he had “on a number of occasions taken photographs with a digital camera of other residents, and particularly children of other residents, living in the locality of your home” and again threatening and injunction and possession proceedings. Ms P was also threatened with possession proceedings, on the (erroneous) basis that
Our clients have received a number of complaints from others living in the locality to the effect that they are being caused a nuisance and annoyance by virtue of the fact that your cameras are placed in a position that records images of people going about their lawful business in public areas.
Despite rebuttal letters from Chesterfield Law Centre, MHT’s solicitors were still writing to say that ‘a court date for an injunction was awaited’ in January 2008. It wasn’t until June 2008 that MHT said no proceeding would be issued
Mr W and Ms P brought a claim for damages for harassment.
At first instance trial, the Circuit Judge found that MHT’s conduct did amount to harassment.
The supposed support of the police for the approach to Ms P’s CCTV was undermined, as their
statements setting out what they saw were insufficient to support an allegation of breach of any tenancy condition although they did provide superficial support for Mr Kotecha. That was not the end of the story, however, for, as the judge went on to explain, an email emerged which PC Hussain had sent to his “mate” Mr Kotecha. In the judge’s words this was “a little triumphant in content” and stated that Ms Parkin was “on the back foot” and that he wanted to maintain momentum. The judge was satisfied that this betrayed a lack of professionalism and concluded that he was unable to place any weight on the evidence these officers had given.
When it came to MHT’s actions
“The case collated by Mr Kotecha was fundamentally flawed in that there was no true basis in fact for it and there was no justification for recommending, urging or taking action on that basis without the basic limited investigatory steps being taken, which it was acknowledged [later] should have been taken. Basic competence and fairness required the staff concerned to comply with the very wise, sensible advice and guidance, offered respectively, by [Mr Hewgill] and [Mr Lowthian]. The result is that, although it was suggested in evidence that on the 10th October there was a “very, very careful” examination of the facts to see what the appropriate action be taken, I am unable to find that any such careful examination took place. The result was that, without any sound factual basis, the [Association] sent out the threatening letters to which I have referred, which had the practical effect of threatening possession proceedings and loss of their home, injunction proceedings and all that would entail in relation to their behaviour, in circumstances where it was unwarranted and unjustified. Such conduct, viewed in context, in those circumstances, in my judgment, for those reasons, was oppressive and unacceptable. The truth of the matter is there is no evidence capable of supporting this behaviour. It goes beyond being merely unreasonable or disproportionate.”
This was not simply carelessness.
“In my judgment the cause of action is established. To exercise the powers of threats of possession and injunction proceedings requires care. The power should not be exercised in an oppressive manner nor in circumstances where it is simply unacceptable and wholly unjustified. I am satisfied that the [Association’s] conduct in embarking on such a course and making sustained threats to [Mr Worthington and Ms Parkin] involving the real risk of the loss of their home, not least in the context of the underlining insinuation of wrong focus on children constituted on the facts of this case harassment.
The requirements of the statutory provisions referred to at the outset of this judgment have been established. Two or more acts of harassment have been made out and the necessary course of conduct is proved. A reasonable person in possession of the information known or ought to have been known by [Association’s] relevant staff… would think, I find, that this course of conduct amounted to or involved harassment of [Mr Worthington and Ms Parkin]. This course of conduct took place and directly impacted upon [Mr Worthington and Ms Parkin] between no later than 11 October 2007 and 11 January 2008 and between 11 October 2007 and 16 June 2008 respectively (if not in fact from 21 and 24 September 2007 respectively) as appears from the [Association’s] and their solicitors’ letters threatening legal action in respect of alleged breach of tenancy conditions, injunctions and possession. If a responsible and balanced approach referred to earlier had been taken from the outset those threatening letters would not have been sent and [Mr Worthington and Ms Parkin] would not have been alarmed and distressed by the course of conduct which I find established.”
Damages were awarded.
MHT appealed to the Court of Appeal. The grounds of appeal were
1. that, in relation to each of the claimants, the judge erred in law in making a finding of harassment against the Association; and
2. that, in relation to each of the claimants, the judge erred in law in his conclusion that the pursuit by the Association of the course of conduct in question was not reasonable so that the defence in s.1(3)(c) of the 1997 Act was not made out.
These were basically the same ground.
First MHT argued that the Judge below had failed to identify the ‘two or more instances’ that were necessary to establish a course of conduct under Protection from Harassment Act 1997, instead just identifying ‘a period’. This got short shrift. There was ample instances, which the judge had identified clearly, even if not in the conclusion.
MHT then argued that the judge had failed to consider whether the conduct was of sufficient gravity to be prohibited by s.1(1) PfHA. That also got short shrift. “The judge expressly directed himself that he had to consider whether or not the conduct complained of crossed the boundary between that which was unattractive and even unreasonable, and that which was oppressive and unacceptable.”
Next MHT argued that the judge had failed to grapple with the requirement that he had “to be satisfied that a reasonable person in possession of the same information would have thought that the impugned conduct amounted to harassment”. Again, the Court of Appeal was unimpressed:
It is true to say that the judge did not find that the Association knew that its conduct amounted to harassment. Nor did he make a finding that the Association acted maliciously. However, the judge did find that Mr Kotecha’s approach was flawed and hopelessly careless, and that the analysis of his materials and presentation by Ms Thomas, Ms Watson and Ms Cartledge was utterly inadequate and uncritical. As a result the letters of 11 October and 5 November 2007 were sent out on a wholly incorrect and unjustified basis. It was in these circumstances that the judge found at [80] that a reasonable person in possession of the information which the Association’s staff knew or ought to have known would have thought that the course of conduct on which the Association had embarked amounted to or involved harassment of Mr Worthington and Ms Parkin. The judge understood the requirements imposed by the 1997 Act, and he asked himself and answered the correct questions.
Lastly, MHT argued that the judge failed properly to analyse the critical letters individually and as a whole and failed to take into account relevant matters. In particular:
the approach adopted by the Association was flawed and careless but argued that the judge was also bound to take into account the following further matters: the Association was in a difficult position because it had received a series of complaints, over time, from neighbouring residents who stated that their privacy was being infringed by the posting of photographs of perceived anti-social behaviour on Mr Worthington’s website and by the presence and positioning of CCTV cameras in the claimants’ properties. These complaints, received over a number of months from March to early October 2007, included the petition signed by 80 individuals. Further, Ms Thomas had personally viewed the website and noted that photographs existed of alleged anti-social behaviour which appeared to have been taken by Mr Worthington. Moreover, the Association properly instructed its solicitors to write letters to each of the claimants in September 2007, which they did, but no response to them was ever received. The Association was also in receipt of corroborative evidence of the Police officers who had physically inspected Ms Parkin’s property in September 2007 and had seen her CCTV cameras first-hand. The Association also sought independent legal advice from its solicitors, Martin Lee, on the strength of its case against each claimant, and it provided to Martin Lee the evidence that it had. Martin Lee then gave legal advice in their letter of 4 October 2007. Importantly, said Mr Bhose, Martin Lee did not advise the Association against taking any action or that there were any failings in its preparation which needed to be rectified before warning letters could be sent. To the contrary, their advice was favourable. The Association then convened the case review meeting on the 10 October 2007, attended by senior management and Police officers, to determine what action to take against the claimants. Acting on the decision taken at that meeting, the Association wrote a reasoned and moderate letter to each claimant on 11 October 2007. These letters did contain threats of legal action but the threats were reasonable and unexceptional and of a kind made by owners of social housing every day of the week as part of their efforts to protect their wider body of tenants. The Association then instructed Martin Lee to correspond on its behalf with the claimants’ legal advisors, which they did. Further, Martin Lee’s letters were clear, moderate and professional throughout. In particular, said Mr Bhose, Martin Lee put forward the Association’s case in a reasoned, measured, and dispassionate way and responded substantively to all the points taken by and on behalf of the claimants.
In short, MHT were behaving responsibly in view of all the complaints and they had legal advice, and the police supported them. And anyway, this is just the kind of thing that social landlords do day to day.
The Court of Appeal took this apart, point by point.
As long term tenants, any threat of eviction was likely to cause particular anxiety.
MHT had been aware at all times of the Claimants’ concerns about ASB and had given Ms P permission to install CCTV. Ms P’s installation and the use of it had been inspected several times by MHT previously.
Mr Kotecha had decided, on no evidence, that the CCTV must be removed and had instructed MHT’s solicitors to write in those terms in September 2007. That was due to Mr Kotecha’s carelessness or incompetence.
The judge was justified in putting no weight on the police statements, for the reasons above.
The ‘Case Review Note’:
There are, as it seems to be, a number of difficulties with this note, however. First, it was or ought to have been perfectly clear that Mr Worthington never had CCTV cameras in his home. Second, the note describes the subject matter of the statements being produced by Mr Kotecha in light of his discussions with residents and having listened to vague stories without any critical enquiry or knowledge of the history of the matter. Third, the report of PC Hussain must be considered in light of my observations in the immediately preceding paragraph of this judgment. And fourth, the advice given by Martin Lee was given on the basis of the instructions they had been given by Mr Kotecha. In light of all of these matters I have no doubt that this file note provides no proper foundation for the actions of the Association which followed.
Martin Lee’s advice was based solely on the ‘evidence’ that they had been provided by Mr Kotecha.
The Case Conference ignored advice from within MHT to inspect and investigate, instead deciding to press on, leading to the letters to Mr W and Ms P. The letters were wrong.
In particular, they were wrong to say that 80 Arkwright residents had signed a petition for only a small proportion of the signatories in fact lived on the estate and the signatures had been procured at a football practice; made reference to “the Police”, when nothing seen by the Police provided any basis for a suggestion that either of the claimants had done anything improper; accused each of the claimants of a “serious tenancy breach” when they had not breached the terms of their tenancies at all and the allegation had no foundation; and asserted that they were going to be served with notices of the Association’s intention to seek possession of their respective homes. These letters had no proper basis and clearly had the potential to cause Mr Worthington and Ms Parkin alarm and personal distress as the Association ought to have known.
MHT could not rely on its own failure to investigate, or that it ignored facts that it knew, or ought to have known, such as Mr W never having CCTV, Ms P’s being properly used, and Mr W’s website and images being viewable.
The threats in the letters of 11 October 2007 were followed by further threats, again alleging breach of tenancy and threatening proceedings on erroneous grounds. These cause anxiety and distress.
The allegation that Mr W had recorded children in the vicinity, again made in letters from MHT’s solicitors, including in December 2007, and the statement in a January 2008 email that MHT had applied for an injunction and was awaiting a court date, were both wholly incorrect.
Similarly, there were threats of proceedings against Ms P on wholly incorrect grounds.
In all these circumstances Mr Davy submits and I accept that a reasonable person would think that the Association’s actions would cause alarm and distress to Mr Worthington and Ms Parkin. I reject the submission that the letters in issue were unexceptional and of a kind regularly sent by owners of social housing as part of their efforts to protect their wider body of tenants. Mr Worthington and Ms Parkin were threatened with possession proceedings and accused of anti-social behaviour and taking inappropriate images of children. Such proceedings, if successful, would have meant they would have to seek accommodation with a different housing association. Yet the Association issued these threats without taking the most basic steps to ensure that they had a proper foundation. They were in fact totally unjustified. I am satisfied the judge had ample material before him upon which to find that the conduct complained of crossed the boundary and was oppressive and unacceptable, and that it amounted to harassment.
Appeal dismissed.
Comment
Oh my.
I’ve mentioned before that tenant advisors and lawyers frequently hear complaints from clients that their housing officer is out to get them, and our usual (and usually accurate) response is that it isn’t personal – they treat everyone badly. But that previous mention was also in the context of a case where the housing officers had behaved awfully, and I said that advisors and lawyers should remain alert to this.
Now this case, where an over zealous ‘estate manager’, Mr Kotecha, took a ‘side’ immediately and proceeded to drum up ‘evidence’ against tenants, while wholly failing to properly investigate, and where MHT’s management and oversight failed utterly, even despite sage internal warnings from experienced senior people.
The Court of Appeal were quite right to dismiss the argument that ‘this is just the kind of thing that housing associations do in these circumstances, routine, even’. These were repeated threats of proceedings and potential eviction based upon no actual evidence whatsoever.
Landlords should take note of this. Excuses of ‘carelessness’ and ‘well we had to do something’ will not necessarily fly. Landlords need to acknowledge that their staff’s ‘careless’ or ‘well intentioned but wrong’ actions can be oppressive, causing distress. And it will not necessarily get them off the hook to say that they were relying on legal advice, where that legal advice was predicated on the inaccurate, one sided and careless information provided to the lawyers.
For landlord’s lawyers, there is also a warning – perhaps the ‘evidence’ coming from the client should be examined for the extent of investigation involved.
And for those acting for tenants, yes, sometimes the housing officers really are out to get the tenants, on wholly spurious grounds, not just being careless.