Antisocial Behaviour Injunctions, commonly known as ASBIs, are often used as an early legal step to manage antisocial behaviour (ASB) before possession is considered. Social landlords increasingly face Equality Act arguments when taking legal action to deal with ASB, whether the claim is for an injunction or possession. 

If a tenant is disabled or may be disabled, the Equality Act 2010 is highly likely to be engaged. Discrimination is the starting point in such defences, to which a landlord must respond on the issue of proportionality. But we have noticed other trends ebb and flow since the Covid-19 pandemic. In the early 2020s, we saw more defences rely on the Public Sector Equality Duty (PSED). Unsurprisingly, a raft of binding case law emerged around that time. More recently, Equality Act counterclaims have become increasingly common. This appears to reflect greater focus on such counterclaims in tenant-side training and commentary. The result is higher litigation risk and litigation costs for landlords. Even more recently, we have seen an increase in medical experts instructed to consider capacity in response to ASBI claims. This article considers this new trend and what it means for case handling.

Capacity and ASBIs

Often, an expert instructed to consider capacity issues in an ASBI case will conclude that the tenant lacks capacity to understand and comply with an ASBI because of their disability. Where that conclusion is reached, any interim order must be discharged. The claim for a final ASBI must also, inevitably, be dismissed. The leading case of Wookey v Wookey supports this approach.

This can be frustrating. Especially as in several of my recent cases, interim orders had resolved the behaviour, which suggests the tenant was indeed able to comply, despite the expert evidence.

The natural consequence if an ASBI is not available and the antisocial behaviour continues, is that the landlord’s only other realistic option is possession. This seems far from ideal.

The practical problem for landlords

If this trend continues, social landlords face a difficult choice. If they seek an ASBI first, they may spend significant time and money on proceedings that do not resolve the issue and must be dismissed. If they move straight to possession, they may be criticised for acting in a discriminatory or disproportionate way because they did not try other remedies first (as my colleague Harry Brown discussed in his blog yesterday).

Should landlords obtain expert evidence before issuing?

Landlords are not medical experts. They cannot assess capacity themselves. They are also entitled to presume capacity under section 1(2) of the Mental Capacity Act 2005. Sometimes, capacity will clearly be an issue. If the available information calls the presumption of capacity into question, it is usually sensible to avoid an ASBI. But in recent cases I have seen, the position was less clear. There was a disability that may have been linked to the behaviour, but nothing to suggest that the presumption of capacity should be reversed.

So what can landlords do? Should they obtain expert evidence before issuing ASBI proceedings? In some cases, this may need to be considered. But the capacity to understand and comply with a proposed ASBI is often not obviously at issue. Given the cost, expert evidence is unlikely to be appropriate as a routine step. There are also practical problems. What if the tenant does not cooperate with an assessment? What if the situation is urgent, escalating or violent, and a without notice ASBI is the natural next step?

For now, landlords may need to accept that the landscape is shifting. Capacity issues may add another procedural obstacle and cost when landlords try to address antisocial behaviour fairly and appropriately.

What might Respect Orders change?

The landscape will change again with the introduction of Respect Orders, which will replace most ASBI applications. The Equality Act 2010 will presumably apply to Respect Orders in the same way. Time will tell whether the current trend carries over, or whether the new regime disrupts that line of defence. We will continue to monitor how tenants/defendants and their lawyers respond to the new regime once it comes into force.

Practical points for landlords

To close, those deciding how to tackle antisocial behaviour should consider the following:

• Identify disability and vulnerability issues as early as possible.
• Keep Equality Act and PSED considerations under review throughout the case.
• Record why an ASBI, possession claim, or alternative intervention is considered proportionate.
• Consider whether there is any information that genuinely calls capacity into question.
• Seek input and opinion from professionals involved, such as social workers or medical staff.
• Seek early legal advice where capacity, disability-related behaviour, or urgent risk issues arise.