A recent judgment, The Co-Operative Development Society Ltd v XXX, serves as a prime example of the issues a court will wish to be addressed on when considering such cases.
Whilst this was an English case, the principles and considerations are equally applicable to Scottish proceedings and are therefore worthy of comment.
Background
In this case, the landlord sought to recover possession of the property relying on the anti-social behaviour of the tenant carried out on numerous occasions. The anti-social behaviour complained of consisted of loud music and shouting at the property. The tenant had severe mental health challenges and the landlord was aware of this prior to commencing proceedings. The tenant produced expert psychiatric evidence in respect of her mental health and the probable impact of that upon her actions. In this case, the tenant’s mental health challenges were so severe that she was unable to be responsible for her own defence and the Official Solicitor was required to conduct proceedings on her behalf.
Not only did the tenant oppose the action for recovery of possession but she counterclaimed for damages based on “injury to feelings”.
The difficulty in securing witness testimony in anti-social behaviour cases
As is often the case, the landlord struggled to obtain witnesses prepared to speak to the anti-social behaviour of the tenant. The landlord alleged that this was due to specific threats made against witnesses. In such cases, the landlord will often lead evidence of a housing manager or officer to speak to the incidents reported. Obviously, this is hearsay evidence which, whilst admissible in civil proceedings, can be of less weight than the direct evidence of the individual involved. What is frequently overlooked, as appears to have occurred in this case, is the need for the landlord’s witness to not only give evidence as to the incidents but also the steps taken to secure the complainer’s attendance as a witness and why that is not possible. In particular, evidence should include any discussions held with that witness regarding their attendance at court, any specific threats made against the witness and an explanation as to why the usual protective measures for vulnerable witnesses would not be sufficient.
Considerations where the anti-social behaviour could be caused by recognised mental health conditions
The second common issue that arose in this case was the extent to which the anti-social behaviour in question arose due to the mental health of the tenant. In this case, the court was not persuaded that the landlord had demonstrated that ongoing assessments as to the proportionality of proceedings to recover possession had been carried out. In addition, the landlord failed to demonstrate that it had actively considered alternatives to recovery of possession with specific consideration given to the tenant’s mental health. Finally, the landlord was considered not to have properly considered the link between the tenant’s mental health and the anti-social behaviour complained of. Having failed to satisfy the court on these issues, the landlord’s action was held to be disproportionate. It is therefore vital that a landlord lead sufficient evidence in this regard.
Concluding remarks
As with all things, proper preparation is key. As soon as anti-social behaviour arises, detailed records ought to be maintained and any written complaints preserved and lodged with the court in due course, even if anonymised. A proportionality assessment ought not to be considered as a tick box exercise but rather an ongoing and dynamic assessment, specifically taking into account the tenant’s mental health and assessment of alternatives to repossession.
