If you are thinking of taking legal action regarding a tenancy, considering whether you have done all you can to assist the tenant beforehand is rarely a straightforward task. As a landlord, you need to make sure that you have not discriminated against any of the tenant’s protected characteristics under the Equality Act 2010, including:

• taking the tenants protected characteristics into consideration, and
• doing everything you can to assist the tenant with this before taking action against their tenancy.

To help you decipher this common issue, we summarise a recent example and explain the practical aspects you need to consider.

The latest case on breaching the Equality Act

Rosebery Housing Association Ltd v Williams & Anor (2021) EW Misc 22 (CC) is the most recent judgment which has found a housing association in breach of their duties under the Equality Act. Rosebery was also ordered to pay damages of £27,500 to the Defendant of whom they were taking action against. On the face of it, this looks very frightening and may discourage you from taking action against various tenants, however after reading the judgment, you soon realise that there was more to both the Defendant’s disability and also residents who were said to have been provoking the Defendant.

The Defendant’s OCD caused her to film her surroundings

The Housing Association made an application for injunction against the Defendant and her mother, who was the sole carer of the Defendant, due to her suffering from severe OCD. The two main issues were that:

• the Defendant would record everything when leaving the house, i.e. both her surroundings and any neighbours speaking to her;
• the Defendant would drive up and down the road where she lived, recording on occasions. Neighbours were advised by the Housing Association to also record the Defendant, however in evidence produced at Court, it was seen that the neighbours had not recorded the Defendant from a distance (as advised), and were shouting and using bad language to provoke the Defendant at times.

Expert psychiatrists provided a report on the Defendant’s OCD, finding that it was on the severe level and if she had of received treatment for her OCD, her filming would have reduced, as well as other anti-social behaviour being claimed. They also stated that the Defendant was not recording neighbours maliciously, and it was confirmed that all recordings she had, she was willing to provide to others if requested.

The judgment

The Court held that Rosebery had breached the Equality Act and that their officers should have had more training in regards to effects of OCD and how to help those suffering with OCD. They found that the neighbours were provoking the Defendant and that it was therefore not just and reasonable to order an injunction against the Defendant.

What can landlords learn from this example?

If there is one lesson to be learnt from this case, it is that social landlords must take the tenant’s disabilities into consideration prior to taking any action against them. That may mean finding support for the tenant, or educating employees on conditions that that tenant may suffer from. While this may concern some social landlords, this does not mean that you cannot take action against tenants with protected characteristics. If, for example, the tenant is not cooperating with you, or you have exhausted all means of trying to engage the tenant, then Courts will still welcome action, so long as you can evidence that it is just and reasonable to be proceeding with this route of action.

How Capsticks can help

Our specialist housing team is working to ensure that we are right beside our clients every step of the way. We can advise on all aspects of housing management, including complex court injunctions, avoiding discrimination and resolving anti-social behaviour issues. Our values reflect your priorities – we care about what we do and aim to make a positive difference in people’s lives.

If you have any queries surrounding proportionality and discrimination, please contact Kelly Lloyd to find out more about how Capsticks can help.