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Injunction order and possession against a tenant with a disability

28 October 2008

Twynham Housing Association ("Twynham") has secured possession of a property where the tenant was claiming the protection of the Disability Discrimination Act, as well as obtaining an Injunction excluding him from his property.

In addition, due to a serious breach of an interim Injunction, the tenant received a six month term of imprisonment.

The tenant had been diagnosed with hydrocephalus (fluid on the brain) as a child and he also suffered with epilepsy as well as having a personality disorder. He had caused serious anti social behaviour in the block where he lived which had been exacerbated when his partner moved into his property. Due to an assault on, and threatened assault to his neighbours, initially, a without notice Injunction was obtained against the tenant.

The tenant raised his mental health as an issue. In so far as Twynham were concerned, they already had a report from the tenant's Consultant Psychiatrist. He concluded the tenant should not be allowed to hide behind the childhood diagnosis of hydrocephalus. The Psychiatrist was also of the opinion the tenant's behaviour should be dealt with through the Courts. It was not until a couple of days before the trial that the tenant's medical evidence was served upon Twynham's Solicitors. This stated that the tenant could be considered to be disabled for the purposes of the Disability Discrimination Act, but was no more specific than that. In addition, it confirmed the diagnosis of Twynham's expert, namely that of hydrocephalus, epilepsy and a dissocial personality disorder.

Days before the possession and Injunction trial were due to commence, the tenant breached the interim Injunction by head butting one of his neighbours. He was arrested and the committal hearing was then adjourned until the possession/Injunction trial.

At the trial, after protracted negotiations, the tenant signed a Notice to Quit. In addition, an Injunction Order was also made which included an Exclusion Order excluding the tenant from the area where he previously resided.

The committal trial however proceeded. The Judge hearing the matter concluded a very serious breach of the Injunction Order had taken place and he had no choice but
to impose an immediate sentence of imprisonment. The tenant was given a 6 months sentence.

Dot Pawlowski of Shoosmiths says:
"This was an excellent result for Twynham Housing Association and has brought much needed respite and relief to this tenant's former neighbours. This case also proves that discrimination is most certainly not a bar to taking legal action against tenants who refuse to abide by the terms and conditions of their Tenancy Agreement. Although medical evidence will have to be obtained, this does not necessarily mean that such evidence will be favourable towards the tenant in question. Medical experts are fully aware of their duties to the Court and are classed as experts for specific reasons, namely they can distinguish between behaviour which can truly be attributed to a person's disability and behaviour which has nothing to do with such a disability. Tenants therefore cannot hide behind inconclusive diagnosis in this respect"

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Dot Pawlowski

Associate
T: 08700 86 4197
I: +44 (0)121 625 4197
E: dot.pawlowski@shoosmiths.co.uk