As addressed by Giles Peaker in Nearly Legal, the recent case of The Co-operative Development Society Ltd v XXX pulled out key issues a landlord should consider when faced with a defendant with a disability and reluctant witnesses. 

Background 

The defendant (the assured tenant of the claimant) was alleged to have caused nuisance and annoyance at the property by shouting and amplified sound. As a result, the council served an abatement in March 2023. This notice was found to have been breached on seven occasions at the Magistrates Court in June 2023, in the absence of the defendant. As a result, the claimant served notice on the Defendant and initiated possession proceedings on Grounds 7A, 12 and 14 of the Housing Act 1988. 

The defendant had a long-term history of personal trauma and domestic violence, resulting in mental health issues, including depression, anxiety, panic attacks, PTSD, substance misuse and self-harm. The defendant was represented by the official solicitor due to a lack of litigation capacity. The claimant knew of the defendant’s mental health issues before issuing proceedings and following the service of expert evidence. 

Hearsay 

The claimant relied on hearsay evidence of a housing officer, citing that the witnesses were too intimidated to attend the trial. However, the judge found there was no evidence to substantiate the witnesses’ alleged unwillingness to attend. Such evidence could have included discussions with the witnesses about attending the trial, specific threats that deterred witness attendance, protective measures that could have been put in place to encourage witnesses to attend or even anonymised witness statements. 

The judge was not satisfied that the claimant had justified its reliance on hearsay evidence or provided evidence in the absence of the attendance of witnesses by way of anonymised statements. At the very least, these statements would be verified by a statement of truth, attracting greater weight than unverified reports. 

Equality Act 

Three proportionality assessments were carried out by the claimant, prepared before the NOSP was served and the claim was issued. The judge found that these were conducted not as an open-minded review to assess proportionality but as a post-issue justification exercise. 

It was found that the assessments did not adequately consider the defendant's mental health issues, the relationship between those issues and the alleged ASB and the impact of a possible eviction. They were also criticised for failing to engage with the psychiatrist’s expert evidence.

At Paragraph 79 of the judgement, the court found: 

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.

The court found that the question is one of ‘substance rather than form’. The judge ultimately found that it was not proportionate to grant a possession order. The defendant was awarded £8,800 in damages for injury to feelings and £1,900 in respect of the disrepair counterclaim. 

Practical steps for landlords

When considering a claimant’s public sector duty, landlords shout:

1. Consider they have taken all reasonable steps to avoid proceedings once they become aware of a tenant's disabilities;
2. Maintain an open-minded approach when conducting a proportionality assessment and not treat it as an ‘after the event’ justification exercise; and
3. Take a ‘sharp focus’ on the tenant’s disabilities and the link these have to the behaviour complained of, and the likely impact of eviction.

1. Engage in active discussions with the witnesses about attending court, any protective measures that could be put in place (e.g. separate waiting areas, screens, evidence via video link) and invite the witnesses to expand on specific incidents that have caused them to fear attendance.
2. When preparing a witness statement on behalf of the landlord, a housing officer should include details of the above discussions, exhibit an anonymised statement from the reporter, attaching any contemporaneous diary sheets or reports and a hearsay notice. This statement should explain why the witness feels unable to come to court for cross-examination and be signed by a statement of truth (redacted with an unredacted copy available for the judge).

These steps can help demonstrate a genuine explanation for witness non-attendance, as opposed to a blanket reason summarised as ‘fear of reprisals’. This is likely to increase the weight attributable to the evidence. 

Additional thanks to Jane Talbot, Barrister at St Ives Chambers, for considering this issue with us and the practical steps.