Registered Providers should now be familiar with the need to consider proportionality when deciding on the nature of enforcement action against any tenant. Fundamental to the proportionality assessment is the need for the evidence upon which the decision is being made to have been tested. For a Registered Provider to satisfy itself that the decision to proceed with possession or an injunction is reasonable, it has to be satisfied in the first instance that the wrongdoing - the tenancy breach - is legitimately made out. If the decision to proceed with enforcement action is based on evidence that is not going to come up to proof, the claim will fail. This could have significant reputational and financial consequences.
However, a recently reported case has highlighted a further risk to Registered Providers if they seek to proceed based on evidence that has not been properly analysed.
On 17 May 2018 the Court of Appeal handed down judgment in the case of (1) Worthington and (2) Parkin v Metropolitan Housing Trust Ltd. The case concerns Metropolitan's handling of complaints that it had received about 2 of their tenants. Ms Parkin had been a victim of ASB and so had been given permission to install CCTV at her home (permission had actually been given for CCTV in her first property, elsewhere on the street, but it was taken that the permission impliedly extended to her new home after she had moved), whilst Mr Worthington ran a local residents group and a website which highlighted what he believed was unacceptable behaviour in the neighbourhood. Some neighbours took exception to the behaviour of Ms Parkin and Mr Worthington, accusing them of inappropriate behaviour and of taking photographs of children. The situation spiralled; there was a petition signed by 80 individuals, (only some of which were local residents), 'statements' were purportedly obtained (the credibility of which was subsequently seriously questioned) and the police became involved. Ultimately, Ms Parkin and Mr Worthington were threatened with Court action if the CCTV cameras were not removed - initially injunction action was mentioned, and then subsequently possession proceedings. Ultimately however, no Court action was actually taken.
However, there were serious flaws with the evidence. There was no evidence of any misuse of the CCTV by Ms Parkin - whilst Mr Worthington did not even have CCTV, despite this being referred to in one of the warning letters he received. There were no photographs found to prove wrongdoing and no police evidence to support the claim. The tenants therefore issued proceedings pursuant to the Protection from Harassment Act 1997.
Ms Parkin and Mr Worthington were successful. The trial Judge was critical of Metropolitan's officers, highlighting one officer in particular as having taken a 'flawed and hopelessly careless approach.' Mr Worthington was awarded damages of £4750, Ms Parkin £4160. Metropolitan appealed.
The Court of Appeal upheld the decision of the lower Court. It found that the correspondence that had been sent to Ms Parkin and Mr Worthington had amounted to a course of conduct that amounted to harassment, that the tone of the correspondence and approach taken had crossed the line to become 'oppressive and unacceptable.' The Court of Appeal reiterated that the absence of any critical examination of the complaints it was receiving was, ultimately, problematic.
The criticism of the housing officers in this case was harsh and for the actions of one officer in particular to be singled out is rare. Furthermore, that criticism may not be justified - the devil may really be in the detail, which may not have come out before the appeal Court.
What is clear however is that the decision has the potential to launch similar claims from tenants who feel they have been wrongly threatened with Court action by their landlord. In the vast majority of cases, such claims can be defeated if it can be shown that the evidence of wrongdoing is genuine and that the threatening of Court proceedings is therefore part of the landlord's escalation process. However, the crucial factor will be in demonstrating that the evidence has been properly examined; that you believe that the reports of wrongdoing you have received are genuine and have not been carelessly or maliciously created. Officers should not be afraid of taking time to analyse the evidence and to carry out further investigations if they have any concerns about the evidence - and only start to issue warning letters or pursue proceedings if entirely satisfied that there is a genuine problem.
The case does highlight the importance of training officers on proportionality issues, on how evidence should be analysed and verified and on how to record the steps taken.