by Kerryn Woollett, Senior Solicitor
What was the case about?
The Housing Association sought an injunction under s.1 of the Anti-social Behaviour, Crime and Policing Act 2014 relying on 123 allegations of anti-social behaviour (ASB), though this was reduced to 6 allegations. These were representative of three types of ASB complained of namely verbal abuse, taking photos and filming neighbours and noise nuisance.
The tenant brought a counter claim primarily under s.15 of the Equality Act 2010 (EA) that the Housing Association, in bringing and continuing the claim for an injunction, had unlawfully subjected the tenant to a detriment because of something arising in consequence of her disability.
Five out of the six allegations were not proven either because of a lack of evidence, because there was only hearsay evidence or because the evidence was unreliable.
The sixth allegation of noise nuisance was proven, though the court found that it was not just and convenient to grant an injunction as the noise nuisance was brief, historic and there were no ongoing issues.
The tenant suffered from severe obsessive compulsive disorder, which caused her obsessively to film her surroundings and drive up and down her own street. Therefore, the court found that the tenant had good reason for filming and photographing her neighbours.
The Housing Association accepted that the tenant had a disability.
Pursuing proceedings for an injunction were found to amount to detriment and this was due to something arising from the tenant’s disability i.e. filming neighbours was more than a trivial part of the reason the Housing Association was seeking the injunction. Whilst it was accepted the Housing Association’s aims were legitimate, bringing proceedings were not proportionate for the following reasons:
- the allegations of ASB were not put to the tenant in a timely fashion;
- the Housing Association did not seek medical advice in order to understand the tenant’s disability;
- the Housing Association did not seek to foster understanding between the tenant and neighbours;
- the tenant had offered to move and the Housing Association did not explore this offer; and
- the Housing Association received compelling evidence from the tenant yet still continued to pursue the claim all the way to trial.
The tenant was awarded £27,500 in damages for injury to feelings as the Housing Association had wrongly treated her as the perpetrator rather than the victim of anti-social behaviour and abuse from her neighbours.
What can be learnt?
The most common protected characteristic engaged in relation to ASB is disability.
Either the landlord or a local authority (if the local authority is not also the landlord) could take action in relation to ASB.
S.15 of the Equality Act 2010 states:
- A person (A) discriminates against a disabled person (B) if—
- A treats B unfavourably because of something arising in consequence of B’s disability, and
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
- Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
Almost any significant intervention by the landlord or a local authority is likely to be considered unfavourable treatment. This includes formal warnings, issuing a notice of seeking possession, issuing a community protection notice or brining proceedings.
Therefore, before taking any action, a landlord or a local authority, should ask three questions:
- Does the landlord or local authority know or can they reasonably be expected to know that alleged perpetrator has a disability?
- Is the ASB “something arising in consequence of” the disability?
- Are the landlord’s or local authority’s actions a proportionate means of achieving a legitimate aim?
Disability is defined in s.6 of the Equality Act 2010 (EA):
A person (P) has a disability if:
- P has a physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities
“Substantial” is defined in s.212(1) as more than minor or trivial and “long-term” is defined in paragraph 2 of schedule 1 as having lasted or likely to last at least 12 months.
The Equality Act (Disability) Regulations 2010 prescribes disabilities and special cases.
Special cases include corrective measures and progressive conditions. That is, if someone would have a disability but it is being treated (i.e. a corrective measure is being used) then it is a disability nonetheless. Also, if a person has a condition which is not currently having a substantial and long term adverse effect on day to day activities, though it will do as the condition progresses, then this is also considered a disability.
The Equality Act (Disability) Regulations 2010 also sets out impairments that are not disabilities, these include:
- Addiction to alcohol/nicotine/any other substance
- Setting fires
- Physical and sexual abuse
- Seasonal allergic rhinitis
- Severe disfigurements by way of non-medical tattoos or piercings
In assessing disability, the landlord or local authority, should consider four questions:
- Is the alleged perpetrator suffering an impairment?
- Does the impairment have a substantial and long term adverse effect on the alleged perpetrator’s ability to carry out everyday life?
- Is the ASB something arising as a consequence of the disability?
- Whether and how the ASB can be addressed?
When is the Landlord/Local Authority reasonably expected to know of the disability?
This will depend on the circumstances. The Public Sector Equality Duty imposes a duty to make reasonable enquiries.
However, “The public sector landlord is not required in every case to take active steps to inquire into whether the person subject to its decision is disabled and, if so, is disabled in a way relevant to the decision. Where, however, some feature or features of the information available to the decision maker raises a real possibility that this might be the case then a duty to make further enquiry arises” London and Quadrant Housing Trust v Patrick  EWHC 1263 (QB)
Therefore, if there is nothing in the facts of the case to suggest that the alleged perpetrator could have a disability, then the landlord or local authority does not, as matter of routine, have to make further enquiries. But, if there is something that leads you to think that there could be a disability then you have to make some enquiries. This could be writing to the alleged perpetrator seeking further information, contacting other agencies (e.g. social services or the police) or contacting GPs.
Something arising in consequence of
The disability need only be an effective not the sole cause of the unfavourable treatment – “…a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor.” (Nagarajan v London Regional Transport  1 A.C. 501)
It can be complicated though if the alleged perpetrator has a disability though also has an addiction which is not a disability. Which of these is then causing the ASB? To determine this you will need to look at each separately and how they feed into the ASB. If the disability is forming an effective reason for the ASB then that is sufficient to bring it within s.15 of the EA, even if the addiction is also a significant factor in the ASB as well.
Does a lack of information or an uncooperative alleged perpetrator preclude assessing disability?
There must be some evidence of disability provided to the landlord or the local authority for the EA to be engaged. If the alleged perpetrator says they have a mental health condition but doesn’t provide any further evidence and won’t cooperate then, in those circumstances, the landlord or local authority would be entitled to operate on the basis that there isn’t a disability until something further leads them to conclude otherwise.
If the landlord or local authority has some existing knowledge but this is unsatisfactory to make an assessment, then landlord or local authority has to make further enquiries before making an assessment. For example, an officer has seen some evidence of a diagnosis of a mental health condition but does not have any information on how it manifests or what treatment can help. In this situation the officer should make further enquiries.
Lastly, remember to keep the assessment under review e.g. the alleged perpetrator is initially uncooperative, though as the matter progresses, more information about a disability is disclosed. If this occurs, further enquiries should be made and the assessment reviewed.
The landlord or the local authority’s aim will usually be legitimate, therefore, the important consideration is then proportionality.
“The structured approach to proportionality asks whether there is any lesser measure which might achieve the landlord’s aims. It also requires a balance to be struck between the seriousness of the impact on the tenant and the importance of the landlord’s aims.” Lewisham London Borough Council v Malcolm  AC 1399.
Whilst this decision was in relation to tenancies, it applies equally to ASB cases e.g. injunctions or community protection notices.
Proportionality needs to be considered as early as possible. Therefore, if you are considering an injunction, proportionality needs to be considered before sending the first warning letter.
It is also essential to have good record keeping.
Mummery LJ set out three questions in R (Elias) v Secretary of State for Defence  1 WLR 3213:
- Is the objective sufficiently important to justify limiting a fundamental right?
- Is the measure rationally connected to the objective?
- Are the means chosen no more than is necessary to accomplish the objective?
In practice this means are there other things you could try first, e.g. if considering seeking possession of a tenant’s property, could you instead try an ABC, a CPN or even an injunction first.
The investigation needs to be carried out swiftly and the onus should not be put on residents to gather evidence. To avoid putting the onus on residents, consideration should be given to whether other agencies can provide support or if other measures can be used (e.g. CCTV).
Attempts should be made to understand the disability e.g. seeking medical advice or contacting charitable organisations e.g. Mind. These organisations might be able to help you understand a disability, its impact on behaviour and how persons with that disability may react in certain situations.
Attempts should also be made to foster understanding between neighbours. This could be difficult because some people don’t want their private information disseminated. But you should try to explain that if others know about their disability, the impacts it has on them and how it manifests, this will help neighbours understand what they are going through and to be more tolerant. This can be achieved through multi agency meetings or round tables.
Explore other avenues and anything the alleged perpetrator has suggested – e.g. in Rosebery the tenant said she could try to move.
Lesser measures could include support referrals, ABCs, CPNs, abatement notices, injunctions or a move for either the alleged perpetrator or the victim(s) depending on the case.
It is also important to adhere to policies. Policies will usually set out the approach to be taken (for example using a graduated approach), how complaints will be handled, how investigations will be carried, what options will be considered and when. Following policies will help to ensure the correct process if followed.
Carrying out an Equality Impact Assessment will also ensure any action taken is proportionate.