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16/01/2022

‘The present proceedings should never have been brought.’ ASB and disability discrimination.

Rosebery Housing Association Ltd v Williams & Anor (2021) EW Misc 22 (CC)

Our grateful thanks to Marie Paris of Doughty Street Chambers for the following note of this County Court judgment.

Applications for injunctions under Part 1 of ASBCPA 2014 seem to be all the rage at moment, so it is refreshing to read the judgment in Rosebery Housing Association v Williams which was handed down by HHJ Luba QC late last year. The judgment provides a helpful list of what-not-to-do in situations where there are allegations of anti-social behaviour levelled at a disabled tenant, particularly where the tenant has made serious allegations of her own.

CW shares ownership of her home with Rosebery Housing Association and has been living there since 2010. She has Obsessive Compulsive Disorder, and as a result her daily routine includes several rituals and repetitive behaviours. One of the most prominent manifestations of her disability is her compulsion to film her surroundings, almost constantly.

There had been allegations of anti-social behaviour made against CW and her mother to Roseberry and the police for several years, and tensions escalated in 2017. Significantly, those allegations were somehow not put to CW in any coherent way until January 2020. In June 2020, Rosebery issued a claim for an injunction against CW and her mother which sought to restrain her from causing nuisance or harassment to four of her neighbours living in the same housing development. Contained within the supporting witness statements were more than 100 allegations spanning over two years. Rosebery was subsequently ordered to produce  a Scott Schedule setting out six sample allegations for trial.

Broadly, Rosebery alleged that CW had verbally abused her neighbours, filmed and recorded them with the intention of distressing them, and played music an anti-social volume. CW counterclaimed, largely on the basis that she had been discriminated against contrary to sections 15 and 35 of the Equality Act 2010.

At trial, only one of the six sample allegations relied on by Rosebery was made out – that being the less serious allegation of noise nuisance. Significantly, HHJ Luba QC refused to allow Rosebery to rely on any other allegations contained in the trial bundle, finding that that the purpose of the Scott Schedule was to provide “examples or illustrations of a class of activity or behaviour” and that there should have been an application to amend the pleadings if other incidents were going to be included. He goes on to comment that a sensible approach would have been to pick six samples which “would have each been the subject of clear, direct, corroborated evidence” cross-referenced to a contemporaneous note of the victim’s complaint. Such an approach was notably absent here.

Thus the real focus of the trial became CW’s counterclaim.  It was plain from the expert evidence that CW’s OCD was a disability, that it manifested itself in her compulsive need to film her surroundings, and that she was not in control of those behaviours or able to stop. HHJ Luba QC expressed no doubt that an injunction would be a detriment for the purposes of section 15, and rejected Rosebery’s contention that the injunction was sought not exclusively or mainly because of the OCD-related behaviours. It was clear on the evidence that the real crux of Rosebery’s grievance was with CW’s filming, and that was more than enough to establish that the injunction claim arose as a consequence of her disability.

Prima facie discrimination being established, HHJ Luba QC then turned to the question of proportionality. He found that “Rosebery failed to come anywhere near” establishing that  a claim for an injunction was proportionate. Significantly, Rosebery failed to follow its own ASB policy  (or, indeed, use basic common sense) when it neglected to put the 123 allegations against her at the time they were made – instead waiting several years before deluging her. Rosebery then threw “flames on the fire” by encouraging its residents to film instances of alleged ASB which only served to exacerbate CW’s condition, and failed to seriously investigate the detailed and numerous complaints CW had made against her neighbours.

Relevant to the question of proportionality was HHJ Luba QC’s conclusion that there had been a wholesale failure to comply with the public sector equality duty. He found:

If ever there was a case in which the social housing provider needed to acknowledge, become familiar with and then discharge the public sector equality duty with vigour it was this one. From a very early stage is should have been obvious to Rosebery that Cara’s condition, particularly if untreated and worsening, would need to be accommodated with reason and understanding by her neighbours and that it would itself need specialist expertise to address a situation with which its own staff had little or no experience. It seems that there was the convening of a residents’ meeting to try and get a suitable ‘message’ across. But that should have been only the start of the provision of information, support and the encouragement of neighbour tolerance and restraint. Much more could and should have been done. To an extent, it was a question of getting neighbours to accept the inevitability of this disability-related intrusion into their lives and their privacy. It was a delicate and difficult task for which Rosebery was not equipped and for which it failed to equip itself.

Moreover, he held that Rosebery should have ensured its staff was made familiar with OCD, and sought specialist advice of its own. A cursory risk assessment was not nearly enough. Other “obvious” lesser measures were not explored, including allowing CW to buy the remaining interest in her home and relocate. By the time that option was seriously considered, over a year later, it was no longer financially viable for CW.

The fact that Rosebery pursued a claim of this nature to trial is described as “inexplicable”:

What has been even more extraordinary is the pursuit by Rosebery of the claim right down to trial. That is in the face of compelling medical advice (…) that an injunction was more likely to give rise to further anxiety, and inflame the situation on the ground, rather than to bring any relief.  Instead of diverting attention to the real, effective, remedy of ensuring that Cara received the help, support and treatment she needed, it pressed on with the claim in a manner consistent with its solicitors’ early indication that it did not want to engage in the resolution of the dispute ‘by correspondence’ but rather by litigation.

This left the question of damages for injury to feelings under the Equality Act 2010, and HHJ Luba QC expressed real sympathy for CW in his assessment:

Her social landlord failed to see her as the victim, rather than the perpetrator. It failed to protect her from the anti-social conduct of others. It was bad enough that she had the misfortune of a life blighted by the crushing rituals and behaviours caused by her OCD. On top of that, she had the burden of defending herself when presented with a deluge of over 100 allegations not previously raised with her, a final warning, a notice seeking possession, and this claim for an injunction hanging over her for some eighteen months. 

Such behaviour warranted significant damages. Applying the Vento bands, the court awarded CW £27,400 – that being a figure in the lower reaches of the top band. This reflected the court’s conclusion that the pursuit of an injunction was discriminatory conduct that stretched over a considerable period of time, and which had caused CW serious distress.

Comment

Whilst the judgment makes for shocking reading at first, Rosebery’s many mistakes will come as no surprise to practitioners defending ASB claims in County Courts across the country. It is all too common for injunctions to be sought as a first, rather than a last, resort – even when it is perfectly clear they will do little to calm tensions among neighbours. Hopefully this judgment will stand as a clear warning of the costly consequences of doing so.

Particularly useful to practitioners is the suggestion that social landlords with disabled tenants should be doing more to educate themselves and their tenants on the impact that a disability may have on a tenant’s ability to interact with their neighbours, before seeking remedies from the court.

NL comment

The full judgment does indeed make quite shocking reading. Notably, Rosebery’s housing officer who completed the ‘Equality and Human Rights Impact Assessment’ in which the decision to take legal action was made, admitted in evidence that he:

fully acknowledged that he did not know of the terms of section 149 (Equality Act) and was not familiar with the public sector equality duty. How precisely he had come to make an informed (by the terms of the 2010 Act) contribution to the two Equality Act assessments which bear his name is far from clear. (at 135).

One of Rosebery’s witnesses did not attend, with no good reason given, but the allegations made in her witness statement had not previously been raised by Rosebery in any event (at 27).

But the judgment also contains this caution to lawyers:

For the trial, the Court was provided with a two-volume Trial Bundle exceeding 1500 pages of documents. Footnote references in this judgment are to the pagination in that bundle. A further Supplementary Bundle was adduced at trial. In addition, each counsel provided full and helpful skeleton arguments. Less helpful was the provision of a Joint Bundle of Authorities and Materials containing 35 items over more than 350 pages. Although reduced at the insistence of the Court to a Core Authorities Bundle, that still had 25 items over almost 200 pages. 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.

I don’t think HHJ Luba QC was at all impressed…

 

 

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.

2 Comments

  1. GM

    interesting case and write up. might need a quick edit though as Para 10 partially names the resident…

    Reply

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