Lessons from The Co-operative Development Society Ltd v XXX By her litigation friend, the Official Solicitor
Introduction
The Co-operative Development Society Ltd v XXX By her litigation friend, the Official Solicitor case heard on 11 and 12 March 2025 concerned possession proceedings brough on grounds of antisocial behaviour (ASB); pursuant to Grounds 7A, 12 and 14.
The Defendant was a tenant of the Claimant who suffered from mental health conditions and was assessed as lacking litigation capacity. The Defendant was further assessed, during the proceedings, to lack capacity to comply with the terms of the tenancy or any order in the possession proceedings. The Defendant counterclaimed for breaches of the landlord’s repairing covenants and sought damages for injury to feelings for breach of the Equality Act 2010. The Judge dismissed the claim for possession.
The judgment is significant in the modern ASB landscape, emphasising the increasing judicial scrutiny applied to proportionality assessments, evidential standards and equality compliance in possession proceedings.
The importance of adequate evidence and proportionality considerations
Central to the case was the quality of the Claimant’s evidence and proportionality assessment.
The Judge determined that assertions presented by the housing officer that neighbouring residents were fearful and unwilling to provide statements were not supported by sufficient detail. The court further noted the absence of evidence showing discussions with those neighbours or consideration of anonymised statements.
Further, although three proportionality assessments were produced over a two-year period, each was found to lack genuine balance between the Claimant’s ASB concerns and the severe distress, substance abuse and self-harm the Defendant was likely to experience following possession of her property. The Claimant had knowledge of the Defendant’s mental illnesses a year prior to the first proportionality assessment. Significantly, all assessments were prepared only after the Notice Seeking Possession and the issue of proceedings. The court viewed them as mere reactive and procedural ‘afterthoughts’ to support the Claimant’s position rather than a true and open-minded assessment of proportionality.
The injury to feelings award
Whilst the court accepted the Defendant had engaged in ASB, including receiving a conviction for breach of a noise abatement notice, the Claimant had failed to thoroughly investigate the extent to which her behaviour arose as a consequence of the disabilities suffered by the tenant. That failure amounted to a breach of the Equality Act 2010. The consequences were considered beyond criticism of process with £8,800 awarded for injury to feelings, falling within the top band of the lower Vento bracket. This decision underlines the financial risk to landlords where protected characteristics are not adequately considered in cases concerning ASB.
Disrepair
The court made a further award of £1,900 in respect of disrepair. The defective bathroom extractor fan contributing to damp was held to fall within the Claimant’s repairing obligations under section 11 of the Landlord and Tenant Act 1985. As the only means of ventilation, it was determined ‘integral’ to the bathroom’s structure. This aspect of the judgment certainly has wider implications for housing disrepair claims.
Concluding remarks
This case is an important reminder than ASB possession claims rarely exist in isolation. Where protected characteristics are present, courts will scrutinise Claimant evidence and proportionality assessments. This case reinforces the need for robust evidence and careful, and genuine, consideration of the inter-play between the circumstances of the ASB and the individual and protected characteristics of the proposed defendant.