Disability discrimination by taking ASB injunction proceedings

Rosebery Housing Association Ltd v Williams and Anor – This recent county court case provides helpful food for thought (despite not being binding on other courts) when it comes to anti-social behaviour (ASB) injunctions involving disabled tenants. 

We outline below the key features of the case and what we consider to be the main points to take away:

Key facts

• Williams was a shared owner who suffered from an obsessive-compulsive disorder (OCD).
• There was a history of alleged anti-social behaviour from Williams, regarding things like verbal abuse, loud music and filming neighbours.
• The registered provider landlord, Rosebery HA, had not, it was found, properly put those allegations to Williams until some years had passed.
• Williams made counter-allegations against her neighbours.
• Five months after the ASB complaint was put to Williams, an injunction claim was brought, relying on over 100 allegations over the preceding two years.
• Williams was found at trial to be disabled due to her OCD. Expert evidence confirmed that her condition led her to film her surroundings and that she was not in control of that urge or able to stop.
• The trial judge, His Honour Judge Luba QC, an experienced housing judge, found that the filming was the main motivation for seeking the injunction order and therefore the proceedings arose in consequence of Williams’ disability.

Lessons to learn
Discrimination having been found on a prima facie basis; proportionality then had to be considered. In this context, Rosebery HA was found to have breached its own ASB policy and procedure. It had failed to put allegations to Williams when they were made. It had also failed to properly investigate the counter-allegations Williams had made against her neighbours.

The learning point here may seem obvious, but it bears repeating how incredibly important it is to ensure that a landlord’s own policies and procedures are being followed on a case-by-case basis. To this end, it is vital that staff are trained on and familiar with relevant policies and procedures, and that they are kept under review and updated when required.

Roseberry HA was found to have completely failed to comply with its public sector equality duty (PSED). HHJ Luba QC was of the view that “nowhere near enough” had been done to understand William’s medical condition. Specialist advice should have been sought. And in light of that, more should have been done to help Williams’ neighbours understand her condition – to help the neighbours accept that her filming was an intrusion that they would simply have to accept with “tolerance and restraint”. HHJ Luba QC acknowledged that this was a “delicate and difficult task” and one that Rosebery HA had failed to equip itself for.

Take the opportunity to reflect on the extent to which information on medical conditions are available to a landlord’s staff, or the options and processes for obtaining it. For example, do landlords have an in-house occupational therapist, or know how to refer to one? Is it built into a landlord’s training and processes to consider whether expert medical advice needs to be obtained?

HHJ Luba QC was of the view that other “obvious” lesser options for dealing with the situation were not explored – for example, assisting Williams to relocate by allowing her to purchase the remaining share in her home and sell it.

There is often an argument in ASB possession proceedings that injunctions are a less invasive remedy and should be considered or tried first (though some will argue the potential loss of liberty for breaching an injunction order is more serious than the loss of the home). A landlord should be confident that non-legal remedies have been or are also being considered before it gets to the point of legal action.

HHJ Luba QC was very critical that this matter was pursued to trial, even after compelling expert medical evidence was obtained.

This serves as a reminder to landlords to always reconsider the issue of proportionality and the PSED when new information comes to light and to carry out that fresh review with an open mind.

As part of the directions, the landlord was ordered to prepare a schedule of allegations, limited to just six allegations of a ‘type’. At trial, only one of those allegations was found proven. Rosebery HA was prevented from relying on any other allegations.

It is important for a landlord to carefully select sample allegations or groups/types of allegations when limited to a certain number of incidents in a schedule. Ensure the range of types of behaviours complained about are included (to justify all of the injunction terms sought) and select those examples that are supported by good quality evidence.

Ultimately, Roseberry HA was found to have discriminated against Williams and damages for injury to feelings (brought as a counterclaim) was awarded in the sum of £27,000. This large sum reflects the serious distress that the court found had been caused to Williams as a result.

The consequences of failing to handle issues arising out of a resident’s disability are very serious. Social landlords always want to tackle ASB and avoid suffering and distress – whether to a disabled tenant or to neighbours who may be suffering as a result of someone’s disability. There is often a delicate balancing act to be performed, and that should be considered in all seriousness, with an open mind and with the assistance of expert advice if necessary – both medical and legal.

For more information

If you would like more information about this topic please contact Rebecca Sembuuze.

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