Anti-social behaviour and the Equality Act 2010: a cautionary tale
Alistair Cantor examines the recent decision in Rosebery Housing Association Limited v Williams & Anr [2021] EW Misc 22, a decision that serves as a reminder both of the difficult issues to be navigated when anti-social behaviour and protected characteristics intersect, and the dangers of failing to do so effectively.
The decision
Rosebery’s claim was for an anti-social behaviour injunction. The Defendants were one of its tenants (“the tenant”) of a property under a shared ownership lease, and her mother. The claim against the mother was settled by way of undertakings but that against the tenant was tried over three and a half days before HHJ Luba QC. That claim had originally been founded on some 123 particulars of alleged ASB but by the time of trial Rosebery had been required to limit itself to six allegations.
The tenant, who suffered from the disability of Obsessive Compulsive Disorder, denied the claim. Furthermore, she counterclaimed under various sections of the Equality Act 2010, primary for unlawful disability-related discrimination.
Rosebery’s claim failed. The court found that five of the six allegations either were not made out at all or did not amount to ASB. This was because, variously, there was no witness or documentary evidence of them, unreliable or hearsay evidence only, or in one case the tenant had had good reason for photographing her neighbour therefore the incident got “nowhere near” constituting ASB. A sixth allegation of historic noise nuisance was proven but the court had “no hesitation” in ruling that it was not just and convenient to impose any injunction as a result. The court’s views on just how far short of proving its case Rosebery fell were reflected in trenchant judicial criticism, describing the claim as a “forensic disaster” and the manner in which it had been brought to trial as “extraordinary”.
The counterclaim rested on stronger ground. Rosebery’s claim was unfavourable treatment and had been brought as a result of the tenant’s disability. It was accepted that it had been brought for legitimate aims but the court found Rosebery “fell well short” of demonstrating proportionality for numerous reasons, including:
- the failure to put allegations of ASB to the tenant promptly as and when they were made;
- a lack of understanding as to the tenant’s disability, which it did not remedy by seeking its own medical advice;
- a failure to foster understanding amongst neighbours or to take action to control the unacceptable behaviour of some towards the tenant;
- the squandering of the opportunity, at the tenant’s suggestion, to arrange for her to move;
- the decision to pursue the claim to trial in the face of compelling medical evidence.
As such, the counterclaim for unlawful disability-related discrimination succeeded. Given the considerable period over which the discriminatory conduct had extended and the effect on the tenant, the court made an award for injury to feelings of £27,500, at the lower end of the highest Vento band for such awards.
Comment
The judgment makes for uncomfortable reading. Social housing providers frequently must navigate thorny legal and practical difficulties when dealing with ASB cases where Equality Act issues are also engaged.
This decision underlines the potentially serious consequences of getting it wrong, both reputationally and financially. Amongst the matters referenced in the judgment was the named signatory to two of Rosebery’s assessments admitting in evidence he was not familiar with the public sector equality duty. Moreover, the damages for injury to feelings were high for that nature of award and, once the presumed costs liabilities were factored in, the monetary reverse suffered by Rosebery would likely have been substantial. The ruling also offers numerous practical lessons to be learnt, from training, to the need for objectivity and a practical approach, through to good-quality decision-making, whether before or following the commencement of litigation.
Alistair and Sarah Salmon will be discussing this decision and the lessons to be learnt from it in detail in their webinar The cost of getting it wrong – ASB and the Equality Act 2010 scheduled to take place on 7 March at 11:00.