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Enforcement action
against vulnerable perpetrators:
principles and considerations for policy and action
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Enforcement action against vulnerable perpetrators
Housing practitioners will be aware of difficulties involved in taking enforcement action against vulnerable perpetrators who may have rights under the Disability Discrimination Act (that are incorporated in the 2009 Equality Bill).
This ASBActionNet sets out the key principles and housing management considerations for policy and action.
1. Disability Discrimination Act duties
The Disability Discrimination Act 2005 imposed a general duty on public authorities. The
Disability Rights Commission (now part of the Equality and Human Rights Commission) and the Housing Corporation (now the Tenant Services Authority) stated that this
general duty also applies to housing associations and covers:
Promotion of equality of opportunity between disabled people and other people
Elimination of discrimination that is unlawful under the DDA 1995
Elimination of harassment of disabled people that is related to their disability
Promotion of positive attitudes towards disabled people
Encouragement of participation by disabled people in public life
Taking of steps to meet disabled people's needs, even if this requires more favourable treatment.
In addition, s. 22(3) of the Disability Discrimination Act 2005makes it ‘unlawful for a person managing any premises to discriminate against a disabled person occupying those premises: (a) in the way he permits the disabled person to make use of any
benefits or facilities; (b) by refusing or deliberately omitting to permit the disabled person to make use of any benefits or facilities; or (c) by evicting the disabled person, or
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2. Eviction of vulnerable perpetrators
The Court of Appeal confirmed In Manchester City Council v Romano (2004) that to evict a tenant whose behaviour was caused by a disability was potentially discriminatory under the Act.
Discriminatory treatment may, however, be justified if the treatment is necessary in order not to endanger the health or safety of any person (which may even include that of the disabled person) (s.24(3)).
Health is to be given a wide interpretation: health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity. The test in
s.24(3) may be satisfied where e.g. a neighbour is deprived of sleep so that their work is affected or is caused depression by the behaviour.
In order to comply with the requirements of the 1995 Act landlords should, prior to seeking possession, consider whether the tenant is suffering from a disability which is the root cause of the anti-social behaviour. If they conclude that the tenant is suffering
from a disability, landlords should consider whether it is necessary to serve a notice of seeking possession and/or to bring possession proceedings in order that the health of neighbours or other identified people is not put at risk. Objective justification for that opinion should be provided.
In the Romano case, Manchester City Council took possession proceedings against two of their tenants Ms Romano and Ms Samari. In the case of Ms Romano the primary allegation were of noise nuisance, caused by DIY activities at anti-social hours and by her teenage sons. In Ms Samari's case the allegations were of harassment, including threats of violence.
A suspended possession order was obtained against Ms Romano, and following breach
the council obtained a warrant for possession, which Ms Romano sought to have
5 her application, after hearing that the behaviour had caused regular sleep-loss to
neighbours.
At the possession hearing for Ms Samari, the judge accepted the evidence that she was suffering from a personality disorder. Her chaotic lifestyle, interacting with her
personality disorder, produced violent behaviour, depression and anxiety. He also
concluded that her behaviour had led to depression in one of the neighbours affected by Ms Samari's behaviour. He made an order for possession.
The Court of Appeal rejected appeals by both tenants and upheld the orders. The evidence of the effect of the tenants' behaviour on their neighbours was sufficient to
justify the evictions under the Disability Discrimination Act 1995.
3. Other enforcement action against vulnerable perpetrators
Section 22 (3) (c) of the Disability Discrimination Act 2005 applies to persons managing premises in relation to possession action or subjection to ‘any other detriment.'
The Court of Appeal indicated in the Romano case, that although sending awarning letter to a tenant is not subjecting him to a detriment, this might be a good stage to start obtaining an opinion on s.24(3).
The Court of Appeal did suggest that obtaining an injunction does fall within the definition of ‘detriment'.
The Court of Appeal did not consider however whether entering into an Acceptable Behaviour Contract or seeking an Anti-social Behaviour Order would also qualify, and there must be some doubt about these.
An Acceptable Behaviour Contract may not fall within the definition of a detriment.
Furthermore it may be argued that in both the case of an Acceptable Behaviour Contract and an Anti-social Behaviour Order the landlord is not acting as a person
6 For Anti-social Behaviour Orders, two cases are particularly relevant (Commissioner of Police for the Metropolis v. Fairweather and R. (Cooke) v. DPP). Both cases
concerned the question of whether an ASBO could be made despite the personality disorder of the defendant/perpetrator. The courts decided that the defendant must have the capacity to understand the order. Just because the defendant is likely to disobey it, does not mean, however, the order should not be made.
In the Fairweather case, a 5-year ASBO was granted against the defendant Ms Fairweather. She was of limited intelligence and suffered from a personality disorder which meant she was likely to disobey the order. On appeal the order was upheld. The
fact that a defendant suffers from a personality disorder which means that he may be likely to disobey an order is not sufficient reason to justify a finding that it is not
necessary to make an ASBO which would otherwise be considered necessary to protect the public. In any event, the judge had been entitled to find that the evidence did not show that the defendant was incapable of following simple instructions.
In the Cook case, an ASBO was granted against Mr Cooke to prevent him begging aggressively. He suffered from a borderline personality disorder and post-traumatic stress disorder. He appealed against the order on the basis that he was not capable of complying with it. The court concluded that while it would be wrong to make an ASBO against a person who by reason of mental ill health would not have the capacity to understand or comply with the order, the fact that a person would be likely to breach an order because he suffers from a personality disorder is not, of itself, a good reason for not making the order.
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