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Landlord's failure to take action

This content applies to England

If, despite complaints being made about a landlord's tenant, the landlord fails to take action, or the victim is not satisfied with the action taken, s/he has a number of options available to her/him.

It should be noted that a landlord cannot be compelled to take action against a tenant for breach of the tenancy agreement.[1]

Complaints procedure

Both local authorities and private registered providers of social housing (PRPSHs) are required to have an internal complaints procedure. If a person is dissatisfied with the landlord's response to her/his allegations of antisocial behaviour, they should follow the complaints procedure, which should be published and widely available.

Community Trigger

The community trigger gives victims of persistent antisocial behaviour the right to demand a review of their complaints and that action is taken to resolve them. For more information see the page Community remedies.

Ombudsman

If, having exhausted the internal complaints procedure, the complainant is still dissatisfied, s/he can then refer the matter the Housing Ombudsman Service. The Ombudsman has the power to investigate complaints, on the completion of which s/he may decide that no action should be taken, or may recommend a course of action that the landlord should take and may recommend that the complainant be compensated (see the page Housing Ombudsman Service (HOS) for more information on how to refer a complaint to the Ombudsman).

In a number of cases,[2] the Ombudsman has found that a landlord's failure to act on a complaint of antisocial behaviour may amount to maladministration.

Judicial review

Where an individual believes that a local authority is not acting lawfully in deciding not to take action against the perpetrator of antisocial behaviour, s/he can apply for a judicial review of that decision. The courts are, however, reluctant to intervene in matters of discretion and only have the power to consider the merits of the authority's decision in extreme cases.

Private prosecutions

An individual can apply for an injunction against a person responsible for antisocial behaviour in certain circumstances.

Legal action against the landlord

Individuals are limited in their ability to seek damages and injunctions against landlords whose tenants have acted in an antisocial manner as it is a well-established principle of common law that a landlord is not liable for nuisance by her/his tenant unless that nuisance was authorised by the landlord or the landlord had assumed responsibility for the safety of the person who was at risk.[3]

However, the High Court dismissed an application to appeal against a decision to strike out a claim for nuisance to be heard against a social landlord who was responsible for the common parts of a building.[4] The argument was that the landlord had notice of anti-social behaviour in the common parts of the building but failed to take steps to abate it within a reasonable time and had therefore 'adopted' the nuisance.[5] The court decided that whether or not the landlord had adopted the nuisance should be decided on its facts.

It has been established that the council cannot be held to be negligent as the court has determined that it is not fair, just and reasonable to impose a duty of care on the council to control its tenants.[6] However, a Court of Appeal case[7] held a local authority responsible for placing two ill-suited neighbours in close proximity to each other, despite knowing about complaints of nuisance and a history of antisocial behaviour. The local authority was ordered to pay one of the tenant's costs and was criticised by the judge for not foreseeing that problems between the tenants may arise.

Human Rights Act 1998

Article 8 of the European Convention on Human Rights gives everyone the right to respect for her/his private and family life and home.[8] An occupier who believes that her/his rights have been or would be breached by a public authority in the UK, can bring a claim against that public authority in the domestic courts.[9] The definition of a public authority includes councils and can also include housing associations when they undertake functions of a public nature.[10]

The Court of Appeal has expressed different views about the application of the Human Rights Act in relation to antisocial behaviour. In one case the court stated that a council could be subject to an injunction if it did not act to prevent noise by a tenant in one property causing a nuisance to the occupier of an adjoining property.[11] In a later case, the court refused to grant an injunction or damages against a council whose tenant was causing a nuisance to a neighbouring occupier.[12]

Furthermore, the courts have also found that 'naming and shaming' a group of teenagers against whom an Anti-social Behaviour Order (ASBO) had been made by producing publicity materials that included photographs and other details was not a breach of their human rights.[13] This approach by the courts has been reflected in Home Office guidance, which encourages councils to use publicity with the aim of helping to protect the community. In deciding whether to publicise details of an individual subject to an ASBO, the council should aim to consider and record several key factors including:

  • the need for publicity
  • a consideration of the human rights of the public
  • a consideration of the human rights of those against whom ASBOs are made
  • what the publicity should look like and whether it is proportionate to the aims of the publicity.

Importantly, although the guidance recommends that each case should be judged on its merits, it states that publicity should be the norm and not the exception.

The Human Rights Act 1998 can be raised as a defence if the landlord appears to be taking possession proceedings unnecessarily, but the courts may still grant an outright possession order.[14]

[1] O'Leary v Islington (1983) 9 HLR 81, CA.

[2] Complaint Nos. 99/C/05299, 02/B/13214, 02/B/ 13215 and 02/C/17152.

[3] Mitchell v Glasgow CC [2009] UKHL 11; also affirmed in Mowan v Wandsworth LBC [2000] 21 December 2000, CA.

[4] Brumby v Octavia Hill Housing Trust [2010] EWHC 1793 (QB).

[5] Sedleigh-Denfield v O'Callaghan [1940] AC 880.

[6] Hussain v Lancaster CC [2000] 1 QB 1.

[7] Brent LBC v Doughan [2007] EWCA Civ 135.

[8] Article 8, Sch.1, Human Rights Act 1998.

[9] s.7 Human Rights Act 1998.

[10] Donoghue v Poplar Housing and Regeneration Community Association Ltd (Secretary of State for the Environment, Transport and the Regions - interested party) [2001] 27 April 2001, CA; Shelter's Housing Law Update Issue 105.

[11] Pemberton v Southwark [2000] 2 All ER 924, CA.

[12] Mowan v Wandsworth LBC [2000] 21 December 2000, CA; Shelter's Housing Law Update Issue 102.

[13] R v Metropolitan Police Commissioner, LB Brent and Secretary of State for the Home Department [2004] 7 October 2004, QBD.

[14] Lambeth LBC v Howard [2001] 6 March 2001, CA; Shelter's Housing Law Update Issue 105.

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