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Social Housing Speed Read – Service of a noise abatement order – a discriminatory act?

This week, we consider noise abatement orders and whether or not a local council acted in a discriminatory manner by serving such an order on a disabled tenant.

Since 2014, the tenant had suffered from a medical condition which manifested in the involuntary vocalisation of sounds, words and phrases. These outbursts – often overheard by neighbours – were regularly profane and offensive. The Council’s Anti-Social Behaviour Interventions Team had been in contact with the tenant since around 2016 following alleged complaints from neighbours that her behaviour was causing a nuisance.

Following consultation with medical professionals, and having found her behaviour to be a statutory nuisance, in 2018 the Council issued a noise abatement notice requiring the tenant to stop making the noises within one hour of service.

This meant that if the tenant failed to comply with the notice – and in the absence of a reasonable excuse – she was liable to an unlimited fine together with a further fine for each day on which the offence continued after any conviction took place.

The tenant argued that she had no control over her vocalisations. In response to the notice, the tenant issued proceedings to quash the notice on the grounds that it amounted to unlawful disability discrimination under various provisions of the Equality Act 2010. She also claimed that the service of the notice breached her rights under Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the Human Rights Act.

The Council denied the tenant’s claims and the High Court found in its favour.

It was accepted that the tenant was disabled and that the service of a noise abatement notice amounted to discrimination on the basis of her disability (as she was being treated less favourably because of something arising from her disability). However, the High Court was satisfied that this discrimination was justified – giving effect to the proportionality defence set out in the Equality Act.

The Judge found that the Council had made every effort to work with the tenant and improve the situation for all parties involved. The Council had offered various support services, offered to discuss re-housing her in more suitable accommodation, and had taken advice as to the potential installation of sound-insulation at her property. The tenant refused all efforts, and so it was determined that the Council was left with no other option but to serve the notice.

It was acknowledged that no assessment of the Public Sector Equality Duty had been carried out under section 149 of the Equality Act 2010. However, the Council had been fully aware of the tenant’s disability and had made attempts to work with her to resolve the situation whilst taking her circumstances into account. The case was therefore dismissed and permission to appeal refused.

The Court in this case clearly took a practical view as to what factors the Council had taken into account when deciding upon what enforcement action to pursue – even if the Council had not recorded that decision in a specific assessment. However, it is important that public bodies – especially housing providers – consider their duties and responsibilities under the Equality Act in making decisions like these and clearly document them. Doing so will increase the prospects of persuading a Court that those obligations have been considered and satisfied.

This case also highlights the importance of working with tenants and those who offer them support to either resolve the problem without Court action or, if that is not possible, demonstrate compliance with the Equality Act where disability (or other issues) may be relevant.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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