2019: The year in review
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Unreasonable tenant behaviour can persist for years, cost huge amounts of time, money and resources, and, in extreme cases, drive staff morale to breaking point. So what can housing providers do to tackle the thorny issue of vexatious complaints?
Housmark research suggests complaints from tenants about their landlord are on the rise. While most are legitimate queries, challenges or criticisms about services and staff, a problematic minority can be vexatious, unreasonable and persistent in nature: those that are disproportionate or made without sufficient grounds; those done in retaliation or to annoy and harass staff; those that persist in seeking an unrealistic outcome; or those made in such high frequency that they prevent the adequate consideration of others’ complaints and become an unnecessary drain on resources.
We know from our experience with many RP clients that this issue isn’t uncommon, but tackling it head-on is. Concerns about cost, complexity and reputational risk – often heightened by mental health and Equality Act issues – usually lead to the problem being ‘contained’ but rarely resolved. However, by employing the right policies and management strategies, and using the available legal tools when necessary, vexatious complainants can be tackled.
There are many possible management strategies for dealing with serial complainants, and these interventions should obviously be tried before taking legal action. Of course, they may actually work; but if not they will assist your case when persuading a court that any future legal action is proportionate and justified.
Strategies should aim to make the contact more manageable, freeing up staff time and reducing costs. Consider, for example:
If these or other approaches don’t work considering the legal remedies available to landlords under the Anti-Social Behaviour, Crime and Policing Act 2014 may the only option left.
An injunction is usually the first option, and can be sought if behaviour is causing both nuisance and annoyance, and is affecting housing management functions. However there are considerations before an application is made, the key one centering on capacity – is the behaviour a result of any mental health, disability or protected characteristic? And does the tenant have capacity to understand the terms of an injunction and the consequences of a breach?
Where a tenant doesn’t have such capacity an injunction isn’t appropriate, and engaging with local mental health teams may be the best way forward.
In the 2014 Act a new “nuisance to landlord” ground for possession was introduced to help tackle vexatious complainants, where the defendant is “guilty of conduct causing or likely to cause nuisance or annoyance to the landlord.” Croftons’ housing management team has recently used this ground to successfully deal with a very persistent and problematic tenant – one of the very rare instances of this legislation being tested in the courts.
As with any litigation of this nature there are many prior considerations to be made, and legal advice to be sought, usually focused on mental health, human rights, Equality Act and avoiding discrimination, carrying out risk assessments, and your duty to make reasonable adjustments for those with disabilities.
As a discretionary ground, ‘nuisance to landlord’ requires a three-stage test for the court: 1) Is the ground proven to the relevant standard? 2) Is it reasonable to make the possession order? 3) Is a suspended or outright order most appropriate? Remember, as this ground is discretionary a suspended order could be the outcome. This is the point where evidence of earlier management strategies you have tried can pay dividends in court as they could potentially be reasonable adjustment.
Most RPs have complaints policies but few have policies to deal with unreasonable complainant behaviour, meaning there is no clear, consistent process for investigating and dealing with the issue.
Having a specific policy and robust procedures can help better identify unreasonable, persistent or vexatious complaints, ensure complaints are dealt with quickly and fairly, distinguish between genuine complaints and customers who are difficult and unreasonable, protect staff from exposure to unnecessary stress, and give staff confidence to tackle behaviour by, for example, imposing restrictions on contact. All front of house staff, and staff with regular customer contact, should be aware of the policy and its scope.
Croftons has significant experience of helping RPs tackle vexatious complainants, from strategy and policy development through to successful litigation, providing close support through the legal process to achieve successful outcomes. If you are experiencing any of these issues and would like advice on how to take the next step to resolving it please contact Kirsty Varley or Melanie Dirom.
Croftons was instructed by a Greater Manchester-based RP to tackle a vexatious complainant who had been habitually exhausting their complaints procedure for any issues relating to his tenancy – for 10 years.
The tenant had committed 52 acts of nuisance against our client in the previous six months alone, including demanding staff members be dismissed if complaints weren’t upheld, and making false allegations to police about a staff member. There were added Equality Act implications as the tenant has numerous disabilities that his behaviour is, in part, attributable to.
The tenant has also complained to the SRA about our conduct, and even been to our offices to remonstrate with our team. Due to the complex nature of the case our client’s previous legal team had shied away from taking action as they felt they didn’t have the requisite capabilities to successfully progress the case.
Upon instruction and appraisal of the matter we advised our client’s Community Safety Manager to use the new ‘nuisance to landlord’ ground for possession. We fully assessed the situation and the associated risks, advising the RP that while the matter was ‘difficult’ it was low risk to them, with good prospects for success, and they should tackle the problem head on using the legislation available. The matter was defended. Starting legal proceedings brought immediate benefits before the case even got to court as the tenant modified his behaviour considerably, only communicating through his legal team rather than the ‘inappropriate’ contact with staff.
The matter went to trial - the first time the legislation was tested in court. The key issue was the Equality Act / Human Rights impact on the case. A psychiatric report found that the Defendant’s behaviour was linked to his disability, so it could’ve been found that our client discriminated against him on these grounds. The Defendant also argued breach of Article 8 – right to home and private life. This was overcome by the careful consideration of the legislation, reasonable adjustments put in place by the Claimant including a single point of contact to manage the Defendant’s behavior, and by the preparation of two risk assessments considering the Defendant’s disabilities.
A court order was agreed that possession proceedings were adjourned for two years on condition that the Defendant did not cause nuisance to staff, did not make malicious allegations, only used a single point and method of contact with a set frequency of contacts, and complied with the terms of his tenancy. An undertaking was also given by the Defendant for two years. Now a resolution has been found our client is no longer devoting huge amounts of resources into managing the situation freeing up time and energy to concentrate on core services.
Croftons is the trading name of Croftons Solicitors LLP, a limited liability partnership registered in England and Wales with number OC343375. The term ‘partner’, if used, denotes a member of Croftons Solicitors LLP or a senior solicitor of Croftons Solicitors LLP with equivalent standing and qualifications. A full list of members is open to inspection at the office. Croftons is authorised and regulated by The Solicitors Regulation Authority (SRA) number 508041. Croftons has its principal place of business at The Lexicon, Mount Street, Manchester, M2 5FA.