Our grateful thanks to Nicholas Nicol of One Pump Court for the following note of a complex ASB possession claim, with counterclaims for breach of the Equality Act 2010 and for disrepair.

Redacted copy of the Judgment is here (a condition of the Official Solicitor in allowing circulation).

The Co-operative Development Society Ltd v XXX By her litigation friend, the Official Solicitor. County Court at Chelmsford. 20 May 2025.

1. This ASB possession claim produced a number of points to note:
2. The Co-op’s evidence and Proportionality Assessments were compiled and presented poorly and the judgment spells out the consequences.
3. The judgment includes a rare award of damages for injury to feelings under the Equality Act 2010 arising from a finding that it would be disproportionate to evict the tenant.
4. While considering a modest claim for damages for breaches of the repairing covenants, the judge held that an extractor fan is part of the structure of the property and, therefore, comes within section 11 of the Landlord and Tenant Act 1985.

The Case

2. The Co-op sought possession of D’s home on Grounds 7A, 12 and 14 of Schedule 2 to the Housing Act 1988, principally that, on 14^th June 2023, she was convicted, in her absence, in the magistrates’ court of 7 breaches of a noise abatement notice served by the local council. On 19^th July 2023, the Co-op served a Notice Seeking Possession and the claim for possession was issued on 11^th September 2023. D’s primary defence was that her eviction would be disproportionate under the Equality Act 2010. She also counterclaimed for breaches of repairing and fitness covenants and for injury to feelings for the breaches of the Equality Act.
3. D is single woman in her mid-30s. She has severe mental health difficulties including severe depression, severe anxiety and panic attacks, post-traumatic stress disorder, substance misuse issues and self-harming behaviours. She did not have capacity to litigate and so the Official Solicitor acted as her litigation friend. The expert psychiatrist opined that D lacks the capacity to manage her housing, abide by the behaviour conditions or comply with any order made in the possession proceedings but also that,

It is highly likely that the eviction from her property will leave [D] in a state of severe distress and it is probable that this will increase her self-harming and substance abuse issues. It may also be likely that [D] may experience suicidal ideation and suicidal intent.

4. D could not give evidence herself but relied on her Defence and Counterclaim and a Statement of Wishes and Feelings compiled in conversation with her solicitor. She claimed she was unaware of and did not intend to cause a noise nuisance but that the walls to her flat allowed the transmission of everyday noise such as microwave doors closing, toilets flushing and phone conversations.

Evidence

5. The Co-op relied mostly on hearsay evidence from a housing officer who claimed that witnesses were too intimidated to attend the trial. The judge held:

I have looked carefully through the emails from residents disclosed by the Claimant, which are heavily redacted, but I have not found anything in the unredacted contents to support the assertion that those residents were unwilling to give evidence or make witness statements. [The officer’s] statement does not contain any evidence of, for example, discussions with residents about whether they were prepared to make witness statements and/or attend court, any reference to specific threats or intimidation that deterred them from doing so, discussions about protective measures that could be put in place by the court, or whether they would be willing to make anonymised witness statements setting out their evidence (as was done in [Moat Housing Group South Ltd v Harris [2005] HLR 33] and is common in cases of this kind). [The officer’s] evidence falls well short of what is expected …The Claimant has not provided an adequate explanation in this case for its reliance on hearsay, or its failure to at least provide anonymised witness statements from residents who have been affected by the Defendant’s behaviour, explaining the impact of that behaviour on them and why they are unwilling to be identified or give oral evidence, if that is indeed the case. Although such witness statements would have been hearsay (if the makers were not called to give oral evidence), they would have been verified by statements of truth in the form required by the CPR and therefore, in principle, capable of attracting greater weight than statements or reports that are not so verified, or multiple hearsay such as [the officer’s] summaries of what residents have reported.”

6. The judge did give weight to:
7. Two witness statements used in the Magistrates’ court because they came from professional witnesses and were verified by a statement of truth.
8. A noise nuisance diary, being contemporaneous and consistent with other evidence
9. D’s Statement of Wishes and Feelings, bearing in mind the circumstances in which it was obtained but also that the Co-op had no opportunity to cross-examine D.

Proportionality Assessments

7. The Co-op knew of D’s mental illness by January 2023 and of the details by January 2024 when expert evidence was served. They purported to carry out three “Proportionality Assessments”, on 3^rd January 2024, 20^th September 2024 and 14^th February 2025. They were all prepared after serving the Notice Seeking Possession and issuing the claim for possession and the judge held that they were created to provide ex post facto justification for the proceedings that had already been issued, rather than an open-minded appraisal of whether it was proportionate to continue the proceedings.
8. Further, none of the Proportionality Assessments adequately recognised the extent of D’s disabilities, the relationship between those disabilities and her anti-social behaviour, or the impact on her of an eviction. D’s failure to engage with the Co-op and other support services and the impact of her behaviour on her neighbours were obviously important issues in the balancing exercise, but the proportionality assessment as a whole was unbalanced because it failed to consider the psychiatrist’s conclusions properly. Any consideration of the proportionality of a course of action begs the question “proportionate to what?” The proportionality assessments failed to adequately consider what detriment or harm D might suffer as a result of eviction and ask whether that is proportionate to the legitimate aims of ensuring compliance with tenancy obligations, preventing anti-social behaviour and protecting D’s neighbours from such behaviour. The judge said (at §79):

The impression I am left with is that the Claimant has not properly understood either the Defendant’s disabilities and their impact on her capacity, including her ability to manage her behaviour and her tenancy, or their obligations under the Equality Act 2010. The proportionality assessments, all carried out after the proceedings were issued, give the impression of being an afterthought, completed for the purposes of advancing the Claimant’s case rather than carrying out the thorough and open-minded balancing exercise that is required. Furthermore, it appears to me that the Claimant has demonstrated no substantive, practical awareness of the PSED. My impression is that the Claimant effectively saw it as a foregone conclusion that they should bring possession proceedings including Ground 7A after the Defendant was convicted for breach of the noise abatement notice, without having regard to the PSED or conducting any robust analysis of the proportionality of such proceedings.

8. The judge concluded at §89 & 90,

In my judgment, it is not proportionate to make a possession order. I have come to that conclusion with some hesitation, and it is not a straightforward one, because I recognise that the current position is not sustainable, in that I have accepted that the Defendant’s behaviour is having an impact on her neighbours, has persisted over several years, and will not change unless she undertakes appropriate treatment, which she has not yet done despite the chronic nature of her problems. However, this is the result of the Claimant failing to provide sufficiently cogent evidence to show either that it has done all it reasonably could to deal with the Defendant’s behaviour without bringing possession proceedings or that both her behaviour and its impact on her neighbours are so severe that they outweigh the grave detriment that the Defendant will suffer if a possession order is made.

Damages for injury to feelings

9. In relation to the claim for damages for injury to feelings, the judge said
10. Mr Nicol’s analysis is correct. Even though the possession proceedings are founded on the Defendant’s anti-social behaviour, including her conviction for breaches of the noise abatement notice, the discrimination consists in failing to recognise that her behaviour was the product of her disabilities and pursuing these proceedings when, as I have found, they are not a proportionate means of achieving a legitimate aim. In that context, in my view, it would not be open to the Claimant to assert, in effect, that the Defendant brought the proceedings on herself, as that would be tantamount to asserting that the discrimination was justified by her behaviour.
11. Applying Eddie Stobart Ltd v Graham [2025] EAT 14, the judge stated,

… the manner of discrimination does enable me to infer that the injury to feelings goes beyond the fear of losing her home and becoming homeless, and the feelings of being targeted and not supported or understood, …

11. The period of loss was 22 months, dated from when the Notice Seeking Possession was served. The judge considered the bands of injury to feelings awards in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318, as uprated in the Seventh Addendum to Presidential Guidance dated 25^th March 2024, and held,

In my view, the duration of the injury takes this case into the top part of band 1 … I assess the damages for injury to feelings in the sum of £8,800, roughly equivalent to £400 per month.

Extractor fan

12. The judge awarded £1,900 for minor disrepair from January 2023. This included an extractor fan in the bathroom not working which the expert said contributed to damp. The Co-op submitted that the extractor fan was an appliance, excluded from section 11 (O’Neill v Sandwell MBC [2007] EWHC 2004 (QB) cf. Aden v Birmingham CC (2013) Legal Action Dec 2013 p.16-17). The judge stated,
    12. … In Irvine’s Estate v Moran (1992) 24 H.L.R. 1, Recorder Thayne Forbes QC held (in the context of the statutory implied repairing covenants) that “…the structure of the overall dwellinghouse consists of those elements of the overall dwellinghouse which give it its essen􀆟al appearance, stability and shape. The expression does not extend to the many and various ways in which the dwellinghouse will be fitted out, equipped, decorated and generally made to be habitable … in order to be part of the structure of the dwellinghouse a particular element must be a material or significant element in the overall construction. To some extent, in every case there will be a degree of fact to be gone into decide whether or not something is or is not part of the structure of the dwellinghouse. It is not easy to think of an overall explanation of the meaning of those words which will be applicable in every case and I deliberately decline to attempt such a definition.”
    13. … given that the bathroom does not have a window or other means of ventilation, in my view the extractor fan in the bathroom is an integral and essential part of its design. In the absence of other means of ventilation allowing moisture in the air to disperse, it is inevitable that condensation will build up, which may cause damp and potential damage or mould growth and the presence of spores, which can be hazardous to health. The extractor fan in the bathroom therefore enables it to function properly as a bathroom in a hygienic way. In my judgement, therefore, the extractor fan in the bathroom can be regarded as a “material or significant element” in the overall construction of the Property and as part of the structure of the Property.

Nicholas NICOL

One Pump Court

February 2026