First-tier Tribunal Dismisses Landlord's Breach of Covenant Claim Against Tenant

OUTCOME: Dismissed

© CROWN COPYRIGHT 2019

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

[NAME]

:

CHI/43UD/LBC/2019/0021

Property

:

18 [NAME], Guildford, Surrey [POSTCODE]

Applicant: [redacted]

:

[NAME] [COUNSEL] [NAME]

Respondent: [redacted]

:

[NAME] [COUNSEL] Counsel

Type of Application

:

Determination of an alleged breach of covenant

Tribunal Member(s)

:

Judge Tildesley OBE Mrs J Coupe FRICS Mrs J Herrington

Date and Venue of Hearing

:

Guildford Magistrates Court 2 December 2019 11 December 2019 (reconvene in the absence of the parties)

Date of Decision

:

22 January 2020

DECISION

2 Decisions of the Tribunal

1. The Tribunal decides that [NAME] [RESPONDENT] has not breached the covenants at clauses 4.8 and 4.13 of the lease, and that the Application should be dismissed.

2. The Tribunal’s determination for each incident relied upon by the Applicant is set out in paragraphs 201-246.

3. [NAME] [RESPONDENT] has been successful with his defence to the application, this does not mean that the Tribunal finds that his conduct was beyond reproach throughout the period in question. The Tribunal found in three incidents there were potential breaches of covenant but two of those breaches had been waived by the Applicant, and the third did not engage the covenant at clause 4.13. The Tribunal found in respect of other breaches, that the Applicant did not fully appreciate that this was legal process and that it was necessary to bring more compelling evidence to the Tribunal to establish its [NAME]. Equally there were some incidents where more consideration should have been given to [NAME] [RESPONDENT] and his disability.

The Application

4. On 28 May 2019 the Applicant landlord sought a determination under subsection 168(4) of the Commonhold and Leasehold Reform Act 2002 (“the Act”) that [NAME] [RESPONDENT], the leaseholder of Flat 18, was in breach of Clauses 4.8 and 4.13 of the lease dated 6 June 2013 and made between [COMPANY] of the one part and [NAME] [RESPONDENT] of the other part for a term of 99 years.

5. The chronology of the proceedings is set out in the “Further Directions” issued 27 September 2019 which are incorporated at Appendix 2 as part of this decision.

6. The Application was due to be heard on 24 October 2019. [NAME] [RESPONDENT], however, suffered a car accident and was admitted to hospital around 20 October 2019. Judge Tildesley adjourned the hearing until 2 December 2019.

7. On 2 December 2019 [NAME] [COUNSEL], Home Ownership Business Partner, acted as representative for the Applicant. [NAME] [COUNSEL], the [NAME], and [NAME] [COUNSEL], [NAME] Solicitor, were also in attendance and gave evidence for the Applicant. [NAME] [COUNSEL] attended as an observer.

8. [NAME] [COUNSEL] of Counsel represented [NAME] [RESPONDENT] pro bono. [NAME] [RESPONDENT] attended and gave evidence. A speech to text operator was appointed to enable [NAME] [RESPONDENT] to participate in the proceedings.

3 9. The Tribunal admitted the parties’ documents bundles in evidence. References to the documents in the respective bundles are in [ ] prefixed by “A” for the Applicant’s bundle and “R” for the Respondent’s bundle.

10. [NAME] [RESPONDENT] supplied a skeleton argument. The Tribunal gave the Applicant time to read it.

11. The Tribunal completed the evidence at around 4.15pm. The Tribunal reconvened on 11 December 2019 in the absence of the parties to discuss their decision.

12. The relevant legal provisions are set out in Appendix 1.

The Background

13. The property is a one bedroom flat within a block of four flats located on a sheltered [NAME] estate comprising of eight flats and 18 bungalows. The estate was built in the 1980s and provided specially for retired persons of pensionable age. The properties are all held on long leases. The terms of which prohibit assignment of the lease unless it is to an elderly person who is in the opinion of [NAME] in need of sheltered [NAME] and who is not unsuitable for sheltered [NAME] in accordance with the criteria laid down by [NAME].

14. Under the terms of the lease the Applicant is required to maintain, repair and decorate the main structure of the estate and to insure the estate against loss or damage by fire and other perils. The lease allows the Applicant to employ a warden (now referred to as an Estate manager), for the general supervision of the estate and to make arrangements for the answering during the night of emergency calls of the [NAME]. The lease, however, specifies that the estate manager cannot be responsible for medical or other care of the [NAME].

15. A [NAME] is obliged to pay a service charge including a deferred charge for the services provided by the Applicant, and to keep the interior of his dwelling in good repair and decorative order.

16. The Tribunal did not inspect the property or the estate. The Tribunal, saw photographs of the estate and the exterior of the property by downloading them from Google Maps. The Tribunal shared the photographs with the parties.

17. The Applicant is a Charitable Community Benefit Society and [NAME] Association and is the owner of the freehold of [NAME] under Title Number SY577516.

18. [NAME] [RESPONDENT] owns the long leasehold of 18 [NAME] under title number SY812607. The flat is located on the first floor of a block of four flats. Mrs [NAME] is the owner of Flat 17 which is immediately

4 below Flat 18 on the ground floor. Mrs [NAME] is the leaseholder of the other ground floor flat (19) in the block. [NAME] [NAME] owns Flat 20 situated on the first floor opposite Flat 18.

19. On 6 June 2013 [NAME] [RESPONDENT] moved into his Flat. On 16 June 2013 Mrs [RESPONDENT] [NAME], the previous estate manager, found [NAME] [RESPONDENT] unconscious in a comatose state in his flat. [NAME] [RESPONDENT] was rushed into hospital and diagnosed with Meningitis. [NAME] [RESPONDENT] remained in a coma for three months. When [NAME] [RESPONDENT] came out of the coma he was totally deaf and unable to walk. While in hospital [NAME] [RESPONDENT] had five toes amputated due to gangrene setting in because he is diabetic and he had learn to walk again. [NAME] [RESPONDENT] underwent a cochlear implant operation which failed and is now permanently totally deaf. [NAME] [RESPONDENT] returned to his home in February 2014.

The Applicant’s [NAME]

20. The Applicant’s [NAME] as set out in its extended reasons dated 23 July 2019 [A56-57] stated that

Between the period July 2017 to July 2019

• [NAME] [RESPONDENT] acted in an aggressive manner towards other residents and subjected them to verbal abuse.

• [NAME] [RESPONDENT] physically assaulted another resident.

• [NAME] [RESPONDENT] was found to be kicking and banging on a resident’s property door and shouting through their letter box.

• [NAME] [RESPONDENT] had made a death threat to the estate manager.

• [NAME] [RESPONDENT] used racially abusive language towards another resident.

• [NAME] [RESPONDENT] made a racist remark to the estate manager.

• [NAME] [RESPONDENT] has acted in an abusive manner towards other employees of the Applicant.

• [NAME] [APPELLANT] behaviour had caused other residents to be fearful and distressed.

• [NAME] [NAME] behaviour has caused the estate manager to feel anxious to the effect that she no longer feels safe working in [ADDRESS].

• [NAME] [NAME] behaviour had resulted in calls for the Police to attend [NAME] on a number of occasions.

5 21. The Applicant argued that [NAME] [APPELLANT] conduct constituted a breach of the following covenants:

Clause 4.13: Not to do or permit or suffer any waste spoil injury damage destruction to or upon the Dwelling or any part or parts of the Estate nor to do or permit or suffer thereon an act or thing which shall or may be or become illegal or immoral or a nuisance damage annoyance detriment or inconvenience to [NAME] or the owners tenants or occupiers of any premises situate in the neighbourhood or which may reduce the value of any other premises.

Clause 4.8: To observe the regulations contained in the Fourth Schedule hereto and such other regulations as may be made by [NAME] and notified in writing to the Lessee from time to time for the better management of the Estate or for the general benefit of the lessees of the dwellings in the Estate.

22. In respect of Clause 4.8 the Applicant relied on Regulation (ii) of the Fourth Schedule, namely:

Not to do anything in the Dwelling or within the Estate or make a noise which may be of annoyance or nuisance to lessees and occupiers of other dwellings in the Estate or in the neighbourhood and in particular not to play a wireless or television or other noise making equipment or instruments so as to be audible outside the dwelling between the hours of 11.00pm and 7.00 am.

23. The Applicant called [NAME] [APPELLANT] [NAME], the estate manager, to give evidence. [NAME] [NAME] supplied an impact statement [A68] and a witness statement [A 69-83]. [NAME] [NAME] also gave evidence. [NAME] [NAME] did not provide a witness statement but he had met with [NAME] [RESPONDENT] to discuss his conduct and was the author of the “Warning Letter Before Action” dated 25 May 2018 [R99] and the Follow up letter from the Meeting on 29 May 2018 dated 17 July 2018 [A164 & 165].

24. The Applicant supplied copies of an Anti-social behaviour incident witness statements from Mrs [NAME] (Flat 19) [A58-60], Mrs [NAME] (Flat 17) [A63-64], and Mrs [NAME], the cleaner engaged by Mrs [NAME] and [NAME] [NAME] [A 65-66]. The three statements related to the incident on 2 January 2018 where it is said that [NAME] [RESPONDENT] kicked the front door of Flat 17 occupied by [NAME] [APPELLANT].

25. The Applicant provided a witness statement of [NAME] [APPELLANT] (Flat 20) which concerned the alleged assault on him by [NAME] [RESPONDENT] on 9 July 2018 [A61-62].

26. The Applicant supplied a witness statement of [APPELLANT], a [NAME] employed by [APPELLANT] [A67]. [NAME]’ statement dealt with the personal effect upon him by the constant accusations of incompetence by [NAME] [RESPONDENT]. [NAME]

6 also said that [NAME] [RESPONDENT] had threatened to visit him at the Head Office in Bradford and at his home.

27. The Applicant chose not to call the residents at [NAME] because the Applicant said that they were old and vulnerable and in fear of [NAME] [RESPONDENT]. The Applicant did not offer a reason why [NAME] [APPELLANT] was not called but relied on the contents of the correspondence from [NAME] [RESPONDENT] to the [NAME].

[NAME] [RESPONDENT] [NAME]

28. [NAME] [RESPONDENT] strenuously denied he was in breach of the various covenants under the lease. [NAME] [RESPONDENT] believed that he had been unfairly treated by Mrs [NAME] since his release from hospital.

29. [NAME] [APPELLANT] submitted that the Applicant’s [NAME] was not specific about dates and details of the incidents on which it relied. [NAME] [RESPONDENT] said that [NAME] [RESPONDENT] who was acting in person until November 2019 has had to piece together the details of its [NAME] from the various witness statements and had addressed what he considered to be the issues in a series of statements.

30. [NAME] [RESPONDENT] supplied witness statements from Mrs [RESPONDENT] [NAME], who was the estate manager prior to [NAME] [NAME] [NAME] [R 114-115], and from Mrs [NAME] [NAME], [NAME] [RESPONDENT]’ carer [R116-117].

31. Mrs [RESPONDENT] believed that [NAME] [RESPONDENT] was being targeted over the smallest things. Mrs [NAME] said that she “had seen this happen before and unless it was nipped in the bud it becomes war”. Mrs [NAME] added

“Sadly the older people get (I’m an old lady myself now) the less tolerance and empathy they seem to have with others, especially people less able than them. They seem to think once you have any sort of disability then you should move on. I have seen this happen many times in my years of employment as an estate manager”.

32. Mrs [NAME] echoed similar sentiments to Mrs [NAME] saying that she had witnessed other people’s lack of empathy and intolerance to the situation.

33. [NAME] [RESPONDENT] had included a “Note” from PC [RESPONDENT] of the Surrey Constabulary who had attended the door incident on 2 January 2018 [R11] and an email from [NAME] [NAME] of the Surrey Constabulary based at Guildford dated 16 October 2018 which concerned the alleged assault on [NAME] [NAME] [R25].

7

Consideration

34. The purpose of bringing proceedings under section 168(4) is to enable a landlord under a long lease of a dwelling to serve a section 146 notice to forfeit the lease for breaches of covenant by the tenant other than non-payment of rent. If proceedings are brought the Tribunal is required to determine whether the tenant has committed an actionable breach of covenant. A finding against a tenant potentially could result in the tenant losing a valuable asset and in this [NAME] his home.

35. The term actionable breach was considered by Judge Huskinson in Swanston Grange (Luton) [COMPANY] v [NAME] 12/2007. Essentially the Tribunal’s jurisdiction under section 168(4) is [COMPANY] to a finding of fact on whether a breach has occurred. Judge Huskinson added that the Tribunal can decide whether the landlord was estopped from asserting the facts on which the breach of covenant is based. Judge Huskinson, however, went on to say the Tribunal’s jurisdiction did not extend to determining whether the breach had been remedied. This was a question for the court in an action for forfeiture.

36. In the Tribunal’s view, the structure of section 168 is such that an action under section 168 (4) should only be brought if the tenant does not admit the breach. In the Tribunal’s view, it follows from the structure of section 168 and the potential severe consequences for the tenant, the landlord is responsible for proving the breach on the balance of probabilities. It also follows the landlord should give the tenant an opportunity to admit the breach and put matters right before bringing proceedings under section 168(4) of the 2002 Act.

37. At the beginning of the hearing the Tribunal required the Applicant to specify which parts of Clause 4.13 and Regulation (ii) it was relying on and to identify the incidents that formed the factual basis of its [NAME]. As well as identifying the incidents, the Applicant referred to 13 items of correspondence. [NAME] [APPELLANT] proposed that it was not proportionate for the Tribunal to consider 13 items of correspondence, and suggested that the Applicant choose two or three letters which formed the high point of their [NAME] against [NAME] [RESPONDENT]. The Applicant agreed to [NAME] [APPELLANT] suggestion and opted for the correspondence exhibited at A103 and A111.

38. The Applicant placed reliance on the following part of Clause 4.13: “not to do or permit an act or thing which shall or may be or become illegal or immoral or a nuisance damage annoyance detriment or inconvenience to [NAME] or the owners tenants or occupiers of any premises situate in the neighbourhood...”

39. In respect of Regulation (ii) the Applicant relied on “Not to do anything in the Dwelling or within the Estate or make a noise which

8 may be of annoyance or nuisance to lessees and occupiers of other dwellings in the Estate and in particular not to play a wireless or television or other noise making equipment or instruments so as to be audible outside the dwelling between the hours of 11.00pm and 7.00 am”.

40. The Tribunal does not consider that the wording in Regulation (ii) adds to the Applicant’s [NAME]. Essentially it is aimed at conduct which may cause a nuisance to lessees and occupiers of other dwellings which is already catered for under Clause 4.13. The distinctive feature of Regulation (ii) is noise from wireless or television or like equipment. The Tribunal understands that [NAME] [RESPONDENT] because of his deafness does not make use of such equipment.

Evidence and Findings

41. The Tribunal now will consider each of the identified incidents relied on in turn.

Cascading Water in July 2017

42. [NAME] [NAME] complained of being startled by water cascading past her window (“nearly jumped out of her skin”) [A 69].

43. [NAME] [RESPONDENT] stated that he was cleaning the inside of his window, and that he was entitled to do that. [NAME] [RESPONDENT] said that water would naturally fall past [NAME] [RESPONDENT] window if it was being cleaned. [NAME] [RESPONDENT] said that water falling passed [NAME] [RESPONDENT] window happened whenever the outside of the window was cleaned by the contractor. [NAME] [RESPONDENT] produced a photograph of the contractor cleaning the outside window using an extended hose/brush [R16] 44. [NAME] [RESPONDENT] believed that Mrs [RESPONDENT] complaint about cascading water was symptomatic of Mrs [NAME] negative attitude towards him since his release from hospital. According to [NAME] [RESPONDENT], Mrs [NAME] had made a series of futile complaints about him including sweet wrappers on the pavement ([NAME] [RESPONDENT] is diabetic and does not eat sweets), and leaving tissues outside ([NAME] [RESPONDENT] uses a handkerchief).

45. The Tribunal accepts [NAME] [RESPONDENT] was cleaning the inside of his window at the time of the incident, and that as a consequence water is likely to fall from the upstairs window. The Tribunal finds that the act complained of is “cleaning windows”.

Shouting and Kicking the Door on 2 January 2018 “Go Back to Poland” on 4 January 2018

46. Mrs [NAME] said that on 2 January 2018 at around 2.30 pm she found the front security door open on her return from going into town. Mrs [NAME] said there was a note on the door asking for it to remain open

9 but she closed it because it was cold. Mrs [NAME] said that shortly afterwards there was a lot of shouting and banging on the door of her flat together with constant ringing of the doorbell, and persistent kicking of the door. Mrs [NAME] said she was very frightened and phoned the Police who arrived promptly.

47. Mrs [RESPONDENT] said that she heard [NAME] [RESPONDENT] kicking the door and that she became very worried for the safety of Mrs [NAME] because [NAME] [RESPONDENT] was shouting very loudly and his behaviour was threatening. Mrs [RESPONDENT] stated that she was aware that [NAME] [RESPONDENT] was awaiting medication and that [NAME] [RESPONDENT] had told her that Mrs [RESPONDENT] kept closing the front door. Mrs [RESPONDENT] commented that every time [NAME] [RESPONDENT] kicked the door of Mrs [RESPONDENT] flat it was slightly giving in. Mrs [NAME] tapped [NAME] [RESPONDENT] on the shoulder and asked him to stop.

48. Mrs [NAME] said that she was working in [NAME] [RESPONDENT] flat when [NAME] [RESPONDENT] knocked on the door of Flat 20 asking if Mrs [RESPONDENT] had closed the front door. Mrs [RESPONDENT] told him it was not her, and [NAME] [RESPONDENT] went away. According to Mrs [RESPONDENT], about 10 minutes later [NAME] [RESPONDENT] was swearing on the stairs saying very loudly that somebody had locked the “fucking door again”. About 15 minutes later [NAME] [RESPONDENT] again went downstairs and found the door closed. Mrs [RESPONDENT] said she heard [NAME] [RESPONDENT] being aggressive to Mrs [RESPONDENT] saying I bet it is her (Mrs [NAME]) and what sounded like him kicking and punching the door. Mrs [RESPONDENT] then heard Mrs [NAME] say to [NAME] [RESPONDENT] that you are going to break the door. Mrs [RESPONDENT] then said that [NAME] [RESPONDENT] returned upstairs saying that he was going to see the estate manager. About five minutes later the Police arrived.

49. [NAME] [RESPONDENT] explained that there is an automatic locking system on the block of four flats which unlocked the door in early morning and locked it in the afternoon. [NAME] [RESPONDENT] said that any delivery man calling after hours would press the bells for the tradesperson and the flat owner for attention. [NAME] [RESPONDENT] stated that this arrangement would not work for him because of his deafness. [NAME] [RESPONDENT] stated that Mrs [RESPONDENT] [NAME], the then manager of [NAME] [NAME], agreed to alter the timing for the automatic locking of the door until 8pm to meet the specific circumstances of his disability. [NAME] [RESPONDENT] reported that this arrangement worked well until Mrs [NAME] learnt about it and started to lock the door by using the manual lever.

50. Turning to the incident on 2 January 2018, [NAME] [RESPONDENT] said he had been given the wrong medication when he was discharged from hospital at 7pm on 29 December 2017. [NAME] [RESPONDENT] became very ill the following day and was treated by [NAME] who gave him a temporary supply of medication until the 2 January 2018 when he would receive his full prescription. [NAME] [RESPONDENT] ensured that the front door was open so that the medication could be delivered straight to his Flat. [NAME] [RESPONDENT] knew that Mrs [RESPONDENT] might lock the door so he decided to check it and found that someone had pushed the manual

10 lever down. [NAME] [RESPONDENT] released the lock and went back to his Flat. [NAME] [RESPONDENT] then checked the lock again 10 minutes later and found that the manual lever had been pushed down again. [NAME] [RESPONDENT] said he saw the back of Mrs [RESPONDENT] returning to her flat, and assumed that it was her who kept locking the door. [NAME] [RESPONDENT] decided to ignore Mrs [RESPONDENT] conduct and instead left a note on the door explaining why it was necessary for it to remain open. [NAME] [RESPONDENT] hooked the door on its fully opened position. Some minutes later he found that the door had been closed once again. At this point he checked with Mrs [NAME] that she was not responsible for closing the door. [NAME] [RESPONDENT] then decided to speak to Mrs [RESPONDENT] about her behaviour. He rang the door bell and received no answer despite knowing that Mrs [RESPONDENT] was inside her Flat. [NAME] [RESPONDENT] then knocked on the door and still received no reply. [NAME] [RESPONDENT] decided to shout through the letter box which did not yield a response. [NAME] [RESPONDENT] said he started to shout and kicked the door twice. It was at this point that Mrs [RESPONDENT] walked up and tapped him on the shoulder. [NAME] [RESPONDENT] then went to [NAME] [RESPONDENT] and asked her to intervene.

51. [NAME] [RESPONDENT] said that the Police were not interested in taking the matter forward. [NAME] [RESPONDENT] produced a note from a Police Officer [R11] which advised him not to see Mrs [NAME] and that if he had any problems he must speak to PC [NAME]. The note ended “I understand your view. Let us see if we can help her (Mrs [RESPONDENT])”.

52. [NAME] [RESPONDENT] asserted that Mrs [RESPONDENT] actions of closing the door put his welfare at risk and that it was done out of malice and spite, and for no other valid reason.

53. [NAME] [NAME] questioned [NAME] [RESPONDENT] about whether she was asked by [NAME] [RESPONDENT] to intervene. [NAME] [RESPONDENT] said that [NAME] [RESPONDENT] had come to tell her that Mrs [RESPONDENT] had closed the door. [NAME] [NAME] declined to answer [NAME] [NAME] question about whether Mrs [NAME] behaviour was good and neighbourly but [NAME] [NAME] accepted that it was annoying and inconvenient. [NAME] [RESPONDENT] asserted that [NAME] [RESPONDENT] should not have been kicking the door or shouting which frightened Mrs [NAME].

54. [NAME] [NAME] reported the incident to the [NAME] on 3 January 2018 and it was agreed that [NAME] [RESPONDENT] would meet with both [NAME] [RESPONDENT] and Mrs [NAME] on 9 January 2018.

55. On 4 January 2018 [NAME] [RESPONDENT] came into [NAME] [RESPONDENT] office and asked why she had told his carer, Mrs [NAME], that he had kicked the door. [NAME] [NAME] said that’s what she had been told by other people at which point [NAME] [RESPONDENT] stated that [NAME] [RESPONDENT] raised his voice and began shouting that there was no evidence of him kicking the door and that she was on “Thin ice” and said “Go back to Poland”.

56. [NAME] [RESPONDENT] strenuously denied that he said to [NAME] [RESPONDENT] “Go back to Poland”. [NAME] [RESPONDENT] stated that he did not even know that

11 she was Polish, and said with a name spelt like hers, [NAME] [NAME] could have originated from several countries.

57. [NAME] [RESPONDENT] said she did not remember that she had told [NAME] [RESPONDENT] that she was from Poland. [NAME] [RESPONDENT] believed that she may have had conversations with his carer, Mrs [NAME], about where she was from.

58. [NAME] [NAME] accepted that she had kept no notes and no emails about the incident of “Go back to Poland”. [NAME] [NAME], however, said she reported it to her manager and was adamant that [NAME] [RESPONDENT] had said these words to her.

59. On 9 January 2018 [NAME] [NAME] and [NAME] [RESPONDENT] held separate meetings with Mrs [NAME] and [NAME] [RESPONDENT] to discuss the incidents on 22 July 2017 and the 2 January 20181. Also on the 9 January 2018 [NAME] [RESPONDENT] raised with [NAME] [RESPONDENT] the “Go back to Poland” incident after [NAME] [RESPONDENT] had left the meeting. According to [NAME] [APPELLANT], the Applicant sent letters to Mrs [NAME] and [NAME] [RESPONDENT] about the incidents including the one of 4 January 2018. The letters were not included in the Applicant’s bundle of evidence

60. Following the meeting on 9 January 2018 [NAME] [RESPONDENT] complained to the [NAME] about [NAME] [APPELLANT] and her allegation of racist language, and also made a complaint to the [NAME] [NAME]. Details of these complaints were not included in the Applicant’s bundle.

61. On 11 April 2018 [NAME] [APPELLANT], [NAME] Manager for the Applicant, met [NAME] [RESPONDENT] to discuss his complaints. [NAME] [RESPONDENT] said she was told by [NAME] that [NAME] [RESPONDENT] had made comments at the meeting which could be seen as threatening. According to [NAME] [RESPONDENT], [NAME] was present at the meeting with [NAME] [NAME], and that they were saying to him, “Why don’t we forget the whole thing and put it behind us”, and that “Its all been a misunderstanding”.

62. The Tribunal finds in relation to the incident on 2 January 2018 that (1) The Applicant had arranged for the door to be unlocked until 8pm as a reasonable adjustment to [NAME] [NAME] disability. (2) Mrs [NAME] had no good reason to keep the door locked at 2.00 pm. (3) [NAME] [RESPONDENT] required the door to be open so that he could receive urgent medication, Mrs [RESPONDENT] and Mrs [RESPONDENT] were aware of that fact. (4) [NAME] [RESPONDENT]’ attempts of dealing with the problem by re-opening the door and leaving a note were the actions of a person behaving reasonably in what would have been a very stressful situation. (5) [NAME] [RESPONDENT] was entitled to ask Mrs [APPELLANT] to desist from closing the door,

1 The Applicant did not cite [NAME] [APPELLANT] behaviour at the 9 January 2018 meeting as one of the incidents upon which it relied to establish a breach of covenant. Given those circumstances the Tribunal has not given a narrative of what took place at the meeting.

12 particularly after she ignored the note. (6) [NAME] [RESPONDENT] resorted to kicking Mrs [RESPONDENT] door twice and shouting only after Mrs [NAME] had failed to acknowledge the knock on the door, and the shouting through the letter box. (7) The Tribunal is satisfied that the actions of kicking the door and shouting were out of frustration rather than a violent act. It is telling that [NAME] [RESPONDENT] stopped kicking the door after he was tapped on the shoulder by Mrs [NAME]. (8) [NAME] [RESPONDENT] then asked for [NAME] [RESPONDENT] help. (9) The Police had been summoned by the time that [NAME] [NAME] arrived on the scene. (10). The Police took no action against [NAME] [RESPONDENT], and the evidence suggested that the Police believed that the problem rested with Mrs [RESPONDENT] rather than with [NAME] [RESPONDENT].

63. The Tribunal finds in relation to the incident on 4 January 2018 that the allegation of “Go back to Poland” is racist conduct which potentially is a criminal act. The Applicant has the burden of proving the allegation on the balance of probabilities. Where the allegation is serious the Tribunal would expect the Applicant to adduce persuasive evidence. The Applicant relies solely on [NAME] [APPELLANT] testimony, which is not corroborated by a contemporaneous note of what happened on 4 January 2018. The Applicant did not produce in evidence the letters purportedly sent to [NAME] [RESPONDENT] after the meeting on 9 January 2018. [NAME] [RESPONDENT] flatly denied that he said the racist comment and denied that he knew that [NAME] [NAME] was Polish. [NAME] [NAME] fairly said that she could not remember whether she had told [NAME] [RESPONDENT] that she was Polish. The Tribunal is satisfied that the Applicant had failed to establish on balance of probabilities that [NAME] [RESPONDENT] had made the racist comment.

64. The Tribunal considers the account of the meeting on 11 April 2018 is relevant in that it would appear that the Applicant decided to take no further action against [NAME] [RESPONDENT] in respect of the incidents on 2 and 4 January 2018. The Applicant adduced no evidence to dispute [NAME] [APPELLANT] version of the conversation with [NAME] [NAME] and [NAME] [NAME] who said that they should all put it behind them, it was a misunderstanding. The Tribunal accepts [NAME] [RESPONDENT]’ account of the meeting. The Tribunal finds that the conversation which took place on 11 April 2018 undermined the Applicant’s [NAME] in respect of the events on 2 and 4 January 2018, and also questioned the validity of the Applicant’s action of resurrecting these events some 18 months after they occurred.

Alleged threat to kill on 16 May 2018

65. [NAME] [NAME] said that around 2pm on 16 May 2018 she came out of her bungalow to take out rubbish. At the same time [NAME] [RESPONDENT] was leaving his flat to get into his car. According to [NAME], [NAME] [RESPONDENT] then pointed at her and said very loudly “If you tell any more lies about me, I will fucking kill you”. [NAME] [RESPONDENT] said that she did not engage with [NAME] [RESPONDENT], and carried on to the bin area where she met the [NAME] who had been working on the estate. [NAME]

13 [NAME] returned to her Office and reported the incident to [NAME] [NAME]. [NAME] [RESPONDENT] reported the incident to the Police.

66. [NAME] [RESPONDENT] said that he was elsewhere when the alleged threat to kill took place. [NAME] [RESPONDENT] stated that around 1pm he went to visit his niece, [NAME] [NAME], who lived at The Croft, Ash, Surrey and took with him some models for [NAME] [RESPONDENT] son for his toy army collection. [NAME] [RESPONDENT] left with his niece from her home around 1.45pm for him to attend his appointment at the [NAME] which was at 2.10pm. [NAME] [RESPONDENT] stated that he arrived at the Clinic around 1.55pm and was called in at 2.05pm. After the clinic [NAME] [RESPONDENT] and [NAME] completed a food shop at the [NAME] on [ADDRESS]. [NAME] [RESPONDENT] dropped off his niece at her home just before her daughter arrived back from school.

67. [NAME] [RESPONDENT] exhibited a copy of his appointment at the [NAME] confirming the time of 2.10pm [R110], an unsigned confirmation that he attended the appointment on 16 May 2018 at 2.10pm [R111], an extract from his diary for 16 May 2018 [R112], and a witness statement from [NAME] [RESPONDENT] corroborating [NAME] [RESPONDENT] movements on 16 May 2018 [R113].

68. [NAME] [RESPONDENT] challenged [NAME] [APPELLANT] on why the Applicant did not take statements from the [NAME] who were in the immediate vicinity at the time when the alleged threat to kill took place. According to [NAME] [RESPONDENT], [NAME]’s response was that she thought about it but decided not to ask the [NAME]. [NAME] [RESPONDENT] said he enquired of the [NAME] and asserted that not one of them heard or saw anything to corroborate [NAME] [NAME] allegation of a threat to kill.

69. When cross examined [NAME] [NAME] said that she did not consider it appropriate to ask the [NAME] about what they saw and heard of the incident because in [NAME] [APPELLANT] opinion it was not right to involve the Applicant’s contractors. [NAME] [APPELLANT] also stated that she did not think about requesting her manager to ask the [NAME]. [NAME] [RESPONDENT] said that she did not know [NAME], [NAME] [RESPONDENT]’ niece, and could not comment on her witness statement. [NAME] [NAME] asserted that she was not a liar and she was very upset by the incident.

70. [NAME] [APPELLANT] for the Applicant argued that the statements of [NAME] and [NAME] [RESPONDENT] were very similar, and that [NAME] [RESPONDENT] statement included comments about the weather which were not correct. [NAME] [RESPONDENT] stated that it would only take [NAME] [RESPONDENT] ten minutes to drive to the [NAME] so it was perfectly feasible for [NAME] [RESPONDENT] to have been on the estate when the alleged threat to kill took place and make his appointment at the clinic at the allotted time.

71. [NAME] [NAME] said that the Police contacted her on 23 May 2018 and was advised that the Police could not do much about the incident

14 because there were no witnesses. On 30 May 2018 [NAME] [NAME] received a visit from a Police Community Support Officer who told her that he was not going speak to [NAME] [RESPONDENT] about it and he offered to refer [NAME] [RESPONDENT] to [COMPANY] because of the distress that she had suffered from the incident.

72. On 29 May 2018 [NAME] [RESPONDENT] and [NAME] [RESPONDENT] arranged to meet with [NAME] [RESPONDENT] to give him a letter dated 25 May 2018 warning him about his conduct to [NAME] [APPELLANT] and the Applicant’s staff [R100].

73. The letter of 25 May 2018 said that

“We (the Applicant) confirm that your behaviour as described above is completely unacceptable and threats of any kind (made to anyone) cannot and will not be tolerated at our locations. By behaving in this way you are also breaching the terms of your lease with [NAME]”.

The letter then went to say the matter had been referred to the Applicant’s legal department to consider whether legal action should be taken which might include applying for an injunction or alternatively looking to take forfeiture action against [NAME] [RESPONDENT] to recover possession of his property.

74. [NAME] [NAME] reported that [NAME] [NAME] had told her that at the meeting on 29 May 2018 [NAME] [RESPONDENT] tore up the warning letter and that he had denied issuing the threat to kill. [NAME] [NAME] and [NAME] [NAME] had decided not to take any further action against [NAME] [RESPONDENT] because he said he was not a threat to [NAME] [RESPONDENT].

75. [NAME] [NAME] on 17 July 2018 sent the follow up letter from the meeting on 29 May 2018. In the letter [NAME] [NAME] said:

“At our meeting, we discussed the incident which is alleged to have taken place on 16 May 2018. You denied that the incident took place and explained that you were not at [NAME] when the incident was alleged to have taken place as you were attending a medical appointment elsewhere. You also gave us assurances that you do not pose a threat to our Estate Manager. You have since confirmed this in our email exchanges. Because of this I explained that at the time we would not take any further action against you but that we would have to monitor the situation very closely as the allegations made were serious and we had very real concerns”.

76. [NAME] [NAME] disagreed that the decision not to take any further action against [NAME] [RESPONDENT] in respect of the “threat to kill” precluded the Applicant from using it now as a ground to support an application for breach of covenant. [NAME] [RESPONDENT] said that he went to see [NAME] [RESPONDENT] to hand him a warning letter personally, and to give [NAME] [RESPONDENT] a chance to explain which he refused to do. [NAME] [RESPONDENT] considered the

15 purpose of the letter was to keep the matter under review and that if further incidents occurred, the Applicant would instigate proceedings.

77. The Tribunal considers a threat to kill an extremely serious allegation. The Tribunal agrees with [NAME] [RESPONDENT] submission that a finding of [NAME] [RESPONDENT] uttering a threat to kill required compelling evidence on the part of the Applicant.

78. The Tribunal finds that the Applicant’s evidence is weak when set against the entirety of the evidence given at the hearing. The Applicant relied entirely on [NAME] [APPELLANT] testimony. The Applicant made no attempt to question the [NAME] who were working in close vicinity of where the incident happened. [NAME] [RESPONDENT] has produced reliable evidence that he was elsewhere when the said incident took place, and his account is supported by a witness statement of his niece, [NAME] [APPELLANT]. The Tribunal was not convinced by the Applicant’s attempts to undermine [NAME] [APPELLANT] evidence.

79. The Tribunal’s view about the weakness of the Applicant’s [NAME] is reinforced by [NAME] [APPELLANT] decision on 25 May 2018 not to take any further action against [NAME] [RESPONDENT] in respect of the allegation of “threat to kill”. The Tribunal questions the propriety of the Applicant’s decision to include the threat to kill as a ground for the present application for breach of covenant when it previously said that it would take no further action.

Alleged Assault on [NAME] [NAME] on 9 July 2018

80. [NAME] [NAME] provided a witness statement dated 18 July 2019 [A61 & 62] on the alleged assault but was not called by the Applicant to give evidence.

81. [NAME] [APPELLANT] stated that on the 9 July 2018 he was working at home and at 7.49pm he received a text from [NAME] [RESPONDENT] saying that his car had broken down in [NAME], and could [NAME] [RESPONDENT] collect him. [NAME] [RESPONDENT] duly brought [NAME] [RESPONDENT] back home and helped him with his shopping. According to [NAME], [NAME] [RESPONDENT] then received a text from the [NAME] to say that they would be arriving at [NAME] within 25 minutes. [NAME] asked [NAME] [RESPONDENT] to stop what he was doing and to leave for the car park. [NAME] [RESPONDENT] asserted that as he was walking out of [NAME] [RESPONDENT]’ flat and about to open the front door, [NAME] [RESPONDENT] immediately sprang to his feet and lunged towards him and trapped him in the corner. [NAME] [RESPONDENT] then grabbed [NAME] [RESPONDENT] by the shirt collar and squeezed it hard putting pressure on his neck, [NAME] [RESPONDENT] used his other hand to push his chin upwards. [NAME] [NAME] said he was terrified and in acute pain. [NAME] [RESPONDENT] was able to write a note to [NAME] [RESPONDENT] stating “You have assaulted me”. [NAME] [RESPONDENT] apologised and followed [NAME] [RESPONDENT] downstairs and was then driven by [NAME] [NAME] to [NAME]. [NAME] [NAME] said that he was left in a state of fear and despair after the

16 assault. Following the alleged assault [NAME] [RESPONDENT] will not engage with [NAME] [RESPONDENT] and will avoid meeting him.

82. [NAME] [RESPONDENT] testified that [NAME] [NAME] reported the incident to her by e- mail the following day. [NAME] [NAME] said that she was in her bungalow on the night when the alleged assault took place and heard [NAME] [RESPONDENT] shout something like “I am not fucking waiting here for two hours”. [NAME] [RESPONDENT] then saw [NAME] and [NAME] [RESPONDENT] go to [NAME]’s car.

83. [NAME] [RESPONDENT] denied that he assaulted [NAME] [RESPONDENT] on 9 July 2018. [NAME] [RESPONDENT] accepted that he texted [NAME] [RESPONDENT] to ask him to collect him from [NAME] because his car would not start and he had his shopping with him. [NAME] [RESPONDENT] could not phone a taxi because of his deafness. [NAME] [RESPONDENT] pointed out that he had helped [NAME] [RESPONDENT] in the past when [NAME] [NAME] was without his car, and that [NAME] was only ten minutes away from [NAME]. [NAME] [RESPONDENT] stated that [NAME] [RESPONDENT] insisted on calling the [NAME] contrary to [NAME] [RESPONDENT]’ instruction. [NAME] [RESPONDENT] did not want to go out again in the evening and he knew that the [NAME] could do nothing with the car except to tow it to the nearest garage. [NAME] [RESPONDENT]’ reluctance, [NAME] [RESPONDENT] contacted the [NAME] which told them that the [NAME] would be there in two hours. [NAME] [RESPONDENT] then shouted at [NAME] [RESPONDENT] and swore at him that “he could not wait two fucking hours for the [NAME] to arrive”. [NAME] [NAME] then called the [NAME] again to say that they would arrive at [NAME] within 25 minutes. [NAME] [RESPONDENT] asserted that at no time did he assault [NAME] [RESPONDENT] when he was in his flat.

84. [NAME] [RESPONDENT] stated that [NAME] [RESPONDENT] had made no complaint about him prior to the incident on the 9 July 2018. Since then [NAME] [RESPONDENT] has made a series of complaints about [NAME] [RESPONDENT] regarding the parking of his car, making good a repair on the stairs and jointly with Mrs [NAME] about noise coming from his flat.

85. [NAME] [NAME] reported the alleged assault to the Police. It would appear that the original officer who attended the incident considered [NAME] [RESPONDENT] to be the offender and recorded the matter under “Community Resolution”.

86. [NAME] [NAME] was given by [NAME] [NAME] a copy of Note that the Police Officer wrote to [NAME] [RESPONDENT] which read:

“The fact that you have apologised to me is enough for [NAME] ([NAME] [NAME]) he accepts this and this matter will be filed as community resolution. [NAME] would like it if you respect that this incident has damaged your relationship and would like you to not contact him or knock at his door. [NAME] feels that he has wasted time and money trying to help someone who does not want help”.

87. [RESPONDENT] was then asked by [NAME] [RESPONDENT] to look into the matter. [NAME] [RESPONDENT] decided in an email dated 25 October 2018 [R25]:

17

“There are clearly two sides to an incident and having read your account below I don't believe showing you as the Offender or recording this under a Community Resolution is appropriate. You have explained what happened and that your actions were in defence. I have asked for this to be rescinded and so there is no culpability or blame on you”.

88. On the 18 October 2019 the Tribunal requested the Applicant to comment on [APPELLANT] email. [NAME] [APPELLANT] replied the same day:

“It is the Applicants position, that there is no indication that this decision was based on any evidence being provided that the Respondent ([NAME] [RESPONDENT]) did not commit the assault, but rather there was a counter claim made against [NAME] [NAME] and no witnesses to support either party. It is the Applicants position that this incident should be viewed in the context with the other incidents relating to the Respondent’s behaviour”.

89. The Tribunal considers that in these circumstances where there is a clear conflict in the versions put forward by the participants to the incident, the Applicant should have called [NAME] [APPELLANT] to give evidence so that the Tribunal could assess the credibility and reliability of his evidence. The Tribunal finds that [NAME] [NAME] account of being throttled but still able to write a note to [NAME] [RESPONDENT] implausible.

90. The Tribunal gives weight to the outcome of [NAME] [NAME] investigation which decided that no culpability and no blame could be put on [NAME] [RESPONDENT] for the alleged assault. The Tribunal is not persuaded by the Applicant’s response to [APPELLANT] decision. The Tribunal considers that the Applicant was put on notice that the Tribunal was likely to place weight on [NAME] [APPELLANT] investigation. The Tribunal may have found the Applicant’s response more convincing if enquiries had been made of [NAME] before it gave its view on [NAME]’s decision.

Abusive Comment to [NAME] [NAME] on 27 September 2018

91. [NAME] [RESPONDENT] said that on 27 September 2018 [NAME] [RESPONDENT] came into her office wanting to talk about various complaints he said he had already raised with [NAME] [NAME]. [NAME] [NAME] advised that she could not comment on these issues and that he needed to raise them either with [NAME] [NAME] or [NAME] [RESPONDENT]. At which point [NAME] [RESPONDENT] stated that [NAME] [RESPONDENT] started to shout at her and accused her of telling the electrician not to replace the heater in the lounge. According to [NAME] [NAME] when she told him that he was shouting at her and then asked him to leave the Office, [NAME] [RESPONDENT] responded “Go fuck yourself. You are the cause of all this trouble. You told [NAME] [RESPONDENT] that I told you to go back to Poland”. [NAME] [RESPONDENT] then apparently said if she pulled something like this again this would not be the end of it. [NAME] [RESPONDENT] then left the Office.

18

92. [NAME] [RESPONDENT] sent an email to [NAME] [RESPONDENT] on 27 September 2018 [A 162] stating that in May 2018 he had agreed not to contact [NAME] [NAME], and to direct his enquiries to [NAME] [RESPONDENT]. [NAME] asked [NAME] [RESPONDENT] to abide with his agreement. [NAME] [RESPONDENT] then added that

“When we met on 29 May 2018 I gave you a warning letter which explained that your behaviour was unacceptable and that if it did not stop we would be left with no choice but to consider legal action against you. By your behaviour this morning you have demonstrated that you will not voluntarily change your behaviour. We cannot allow our member of staff to be subjected to the types of behaviour you have demonstrated on a number of occasions and we are now going to make application to court for an anti-social behaviour injunction against you. You will hear further from us in due course. I am also going to consult my colleagues in our [NAME] in relation to the breach of covenants in your lease and potential consequences of this”.

93. [NAME] [RESPONDENT] said that [NAME] [RESPONDENT] sent [NAME] several emails which contained derogatory remarks about [NAME] [APPELLANT] and [APPELLANT]. The Applicant did not exhibit the emails.

94. [NAME] [APPELLANT] cross examined [NAME] [APPELLANT] about why the Applicant did not carry out its intention to apply for an anti-social behaviour injunction. [NAME] [APPELLANT] said that the Applicant decided in December 2018 that an injunction would not be effective which was why the Applicant chose to go down the breach of covenant route. [NAME] [APPELLANT] denied [NAME] [APPELLANT] suggestion that the Applicant did not have sufficient evidence to pursue an injunction. [NAME] [NAME] accepted that an injunction was the less serious option than forfeiture proceedings.

95. [NAME] [NAME] did not respond directly to the allegation. [NAME] [NAME] contended that an isolated act of swearing did not amount to a breach of covenant.

96. The Tribunal accepts [NAME] [NAME] evidence of the incident on 27 September 2018.

DIY work on the Communal Stairs on 12 to 14 October 2018

97. [NAME] [NAME] said she received an e-mail from one of the residents in the block of flats where [NAME] [RESPONDENT] lived saying there was a lot of noise caused by banging, drilling and items hitting doors and stairs. Following receipt of the email [NAME] [NAME] spoke to the residents in the block and was told that the noise went on during the weekend of 12 to 14 October 2018 until around 10.30pm to 11pm on the Friday, 3pm to 8pm on the Saturday and to around 4.30 to 5pm on the Sunday. [NAME] [NAME] stated that after checking the building she saw that all surfaces in the staircase were covered with a layer of dust which she wiped from the railings and the cleaner did a thorough job next day.

19

98. [NAME] [RESPONDENT] said he had complained to [NAME] about the need to carry out repairs to the staircase, and had been told that it would be done when the internal decorations would be carried out [R77]. [NAME] [RESPONDENT] had no confidence that the Applicant would undertake the works. [NAME] [RESPONDENT] pointed out that no internal decorations had happened for the five years that he had lived in the Flat. [NAME] [RESPONDENT] took it upon himself to effect the repairs to the stairs.

99. [NAME] [RESPONDENT] reported that [COMPANY] e-mailed [NAME] [RESPONDENT] telling him not to carry out any work in the communal areas, to restrict DIY to his Flat and garage, and to consider his neighbours and keep noise to a minimum when working late in the evening.

100. The Applicant did not exhibit the emails from the neighbour and [COMPANY] in its bundle.

101. The Tribunal finds that [NAME] [RESPONDENT] did works to the communal stairs for which he had no authority to carry out. The Tribunal observes that the Applicant has not pleaded “unauthorised works to communal areas” as a breach of covenant. Instead the Applicant asserted that [NAME] [RESPONDENT] was doing an act which was annoying to the other residents in the block of flats. On the information provided the DIY did not take place during the hours of 11.00pm to 7.00am which were the times specified in clause (ii) of the Fourth schedule for not making an audible noise outside the dwelling. The Applicant did not substantiate the allegation with a witness statement from the resident concerned or with the e-mail sent to [NAME] [NAME]. The Tribunal is not prepared to make an adverse finding against [NAME] [RESPONDENT] in the absence of direct evidence from the persons affected by his DIY activity.

Racist Comments to [NAME] [NAME] on 22 October 2018

102. [NAME] [NAME] reported to [NAME] [RESPONDENT] by email on 31 October 2018 that [NAME] [RESPONDENT] had come to his front door and called him “Asian bastard”. According to [NAME] [RESPONDENT], [NAME] [RESPONDENT] also complained that [NAME] [RESPONDENT] deliberately parked his cars at the rear and front of [NAME] [NAME] car which meant that he was unable to manoeuvre his car out of the parking space except with help from the Police.

103. [NAME] [NAME] said that [NAME] [NAME] made a statement to the Police about both incidents and that the Police had visited [NAME] [RESPONDENT] twice and requested him to attend an interview at the Police Station but refused to do so.

104. [NAME] [NAME] stated that a Police Officer had visited her on 7 November 2018 about the two incidents but the Officer explained that the Police could not do anything because there were no witnesses to the making of the racist remark.

20

105. According to [NAME], [NAME] [RESPONDENT] emailed [NAME] immediately following the visit of the Police Officer on 7 November 2018 in which [NAME] [RESPONDENT] allegedly described [NAME] [RESPONDENT] as “A very sick person”, “You are not a man but a worm because such conduct on your part is not the action of a normal person and it is obvious that you have a very sick and unstable mind”. “You are simply a retarded troublemaker, and nothing more than a very unstable mentally deranged toe-rag”.

106. [NAME] [RESPONDENT] said that [NAME] [RESPONDENT] copied [NAME] in the email sent to [NAME] [RESPONDENT]. [NAME] [NAME] advised [NAME] [RESPONDENT] that [RESPONDENT] would reply to [NAME] [RESPONDENT] telling him that he found the personal and attacking nature of the email to be totally unacceptable. The Applicant did not provide the Tribunal with copies of [NAME] [APPELLANT] email to [NAME] [RESPONDENT] or [RESPONDENT] response to [NAME] [RESPONDENT].

107. [NAME] [RESPONDENT] categorically denied that he called [NAME] [RESPONDENT] an Asian bastard and saying that it was lie by [NAME] [RESPONDENT].

108. [NAME] [RESPONDENT] believed that [NAME] [RESPONDENT] was making up complaints about him out of spite following [NAME] decision on 16 October 2018 to rescind the Community Resolution finding against [NAME] [RESPONDENT] in relation to the alleged assault on [NAME] [RESPONDENT] on 9 July 2018. [NAME] [RESPONDENT] placed on record his fears about [NAME] [RESPONDENT] pursuing false complaints against him in an email to [NAME] on 24 October 2018 [R27].

109. [NAME] responded to the email by stating that

“I appreciate you are having issues with your neighbour. The last thing we all want is for this to escalate or for you to be under the spotlight for taking matters into your own hands. You are perfectly within your rights to challenge your neighbour when you see fit but as always this has to be reasonable and within the law. I can’t describe every situation and eventuality you may face, but I’m keen this situation is resolved as soon as possible. Would you be available to meet with an officer to discuss this?”

110. The Tribunal has no direct evidence from [NAME] [APPELLANT] in respect of the alleged racist insult. The Applicant again has not supplied copies of the emails relied on and the correspondence from the Police. The Tribunal prefers the evidence of [NAME] [RESPONDENT] because he has given an explanation for why [NAME] [RESPONDENT] may have made up these complaints against him. [NAME] [RESPONDENT] has exhibited correspondence with [RESPONDENT] which is emollient in tone and supportive of [NAME] [RESPONDENT]’ predicament.

Disabled Car Parking Space: 28 January 2019

21 111. [NAME] [RESPONDENT] had successfully applied to the Council to have one parking bay on [NAME] reserved for disabled persons with a Blue Badge. The necessary works were carried out by the Council on 13 December 2018.

112. On 17 December 2018 [NAME] [NAME] emailed [RESPONDENT], District Manager, about [NAME] [RESPONDENT] putting a note on a car parked in the disabled bay. [NAME] [RESPONDENT] asked [NAME] [RESPONDENT] to contact [NAME] [RESPONDENT] advising him that disabled parking bays were advisory only and there was nothing stopping people parking there even without a blue badge. [NAME] [RESPONDENT] agreed for [NAME] to write to [NAME] [RESPONDENT] about this and also advise him not to approach [NAME] [NAME] if there were problems with persons parking in the disabled bay.

113. The incident on 28 January 2019 involved Mrs [NAME] who lives at 26 [NAME] and her friend, Mrs [NAME]. They both sent emails to [NAME] [RESPONDENT] about their encounter with [NAME] [RESPONDENT]. Mrs [NAME] said that on the 28 January 2019 she had parked her car in the designated disabled car parking space. Mrs [NAME] was not the holder of a blue badge. At about 12.45pm Mrs [NAME] left her house with Mrs [RESPONDENT] to go out in Mrs [NAME]’s car. [NAME] [RESPONDENT] approached them as they were getting into the car asking Mrs [NAME] if it was her car that was parked in the disabled bay and whether she had a blue badge. Mrs [RESPONDENT] asserted that [NAME] [RESPONDENT] became abusive when he discovered that Mrs [RESPONDENT] did not have a blue badge. Mrs [RESPONDENT] said that [NAME] [RESPONDENT] used “fucking” every other word, and that [NAME] [RESPONDENT] threatened to damage her car, and told her to watch out. At this point Mrs [NAME] felt that the conversation was going nowhere so she and Mrs [NAME] drove off. The following morning Mrs [NAME] moved her car from the disabled bay.

114. [NAME] [NAME] said that Mrs [NAME] confirmed Mrs [NAME] account of the incident. Mrs [RESPONDENT] said that [NAME] [RESPONDENT] was very abusive, his language was foul, and that he would see Mrs [RESPONDENT] in hospital.

115. [NAME] [RESPONDENT] painted a different picture of the incident. He believed that Mrs [NAME] had been attempting to provoke him by persistently parking in the disabled bay. [NAME] [RESPONDENT] said when he approached Mrs [RESPONDENT] on 28 January 2019 he noticed Mrs [NAME] saying something and waving an A4 sheet of paper in her hand. [NAME] [RESPONDENT] asked Mrs [NAME] to write down what she was saying in his notebook as he was deaf. Mrs [NAME] started to write something down but in the end gave him the A4 sheet of paper which contained advice from a Government website stating that disabled bays are advisory markings only and that there was no power to enforce their use by blue badge holders. After he read the A4 sheet, [NAME] [RESPONDENT] managed to lip read Mrs [RESPONDENT] stating that “any one can park here”. According to [NAME] [RESPONDENT], Mrs [NAME] then suddenly appeared to lose her temper. [NAME] [RESPONDENT] lip read Mrs [RESPONDENT] as saying “Oh why don’t you go away”. According to [NAME] [RESPONDENT], Mrs [NAME] was waving her arms and her right had caught [NAME] [RESPONDENT] by the side of his right temple hitting his glasses.

22 At which point [NAME] [RESPONDENT] shouted at Mrs [RESPONDENT], “Don’t you fucking dare do that to me”. After this [NAME] [RESPONDENT] said he got into a shouting match with Mrs [RESPONDENT].

116. [NAME] [RESPONDENT] reported the incident to PC [RESPONDENT] who stated that [NAME] [RESPONDENT] was probably right that they were doing this to wind him up, and that he should not lower himself to their level [R29].

117. [NAME] [RESPONDENT] pointed out that it was only Mrs [RESPONDENT] of the 26 residents at [NAME] who persisted in parking in the disabled bay. [NAME] [RESPONDENT] also could not understand why the Applicant did not intervene on his behalf in respect of the use of the disabled parking space.

118. The Tribunal acknowledges that the disabled bay parking space at [NAME] is advisory and that there are no powers to restrict its use to blue badge holders. The Tribunal, however, considers that motorists appreciate the purpose of the bays and that the responsible thing to do is not to park in such bays if they do not hold a blue badge. The Tribunal finds that the Applicant advanced no good reason why Mrs [APPELLANT] parked her vehicle there. The Tribunal agrees with [NAME] [NAME] assessment that Mrs [NAME] act of parking her car there was intended to provoke him and cause trouble. What followed was a shouting match between Mrs [NAME] and [NAME] [RESPONDENT] where it appeared that both of them gave as good as they got. The Tribunal is satisfied that the Applicant adduced no evidence to indicate that Mrs [APPELLANT] and Mrs [NAME] were distressed by the incident.

Loud Banging: 13 June 2019

119. On 14 June 2019 the residents in block 17-20 [NAME] informed [NAME] [RESPONDENT] that loud banging was heard from [NAME] [RESPONDENT]’ flat the evening before on 13 June 2019. According to [NAME], the residents reported noises sounding like very loud hammering lasting for about 10 minutes around 8 pm and then later at around 10pm for 15-20 minutes. Apparently one of the residents was worried that the ceiling come down. Another resident called [NAME] via the pull chord who called in to [NAME] [RESPONDENT]’ flat but during the call no noise was heard.

120. [NAME] [RESPONDENT] could not recall the incident. The Tribunal is satisfied that that the allegation has no substance. The Applicant has chosen not to identify the complainants. Further the operators of [NAME] did not hear any noises during their contact with [NAME] [RESPONDENT]. Finally even if [NAME] [RESPONDENT] was hammering at the times and duration alleged, the Tribunal does not consider that so unreasonable as to cause a nuisance.

Acted in Abusive Manner to the Applicant’s Members of Staff

23 121. The Applicant relied on the witness statement of [APPELLANT], a [NAME] [A67], and selected correspondence with [NAME] [RESPONDENT] to substantiate its allegation of abusive behaviour towards its staff.

122. At the commencement of the hearing the Tribunal requested [NAME] [NAME] to specify the correspondence she said supported the Applicant’s [NAME]. [NAME] [APPELLANT] identified 13 items of correspondence [A101, 103, 104, 107, 109, 111, 112, 117, 118, 137, 144, 147 and 154].

123. [NAME] [NAME] submitted that it was not proportionate for the Tribunal to consider all 13 items of correspondence and requested [NAME] [NAME] to choose a [COMPANY] number of the correspondence which demonstrated the high point of the Applicant’s [NAME] against [NAME] [RESPONDENT]. [NAME] agreed with [NAME] [RESPONDENT] suggestion and highlighted the correspondence at [103] and [111].

124. The Tribunal, therefore, will determine the allegation of abusive behaviour in the context of [NAME] [NAME] statement and the two highlighted items of correspondence.

125. The background to the allegation of abusive behaviour is [NAME] [NAME] proclivity to complain about the services provided by the Applicant and his view that the Applicant has not dealt with his complaints in a prompt and efficient manner. The Tribunal understands that [NAME] [RESPONDENT] escalated his dissatisfaction with the Applicant’s complaint handling to the [NAME] [NAME]. The parties’ hearing bundles included passing references to the [NAME]. The Tribunal asked the parties the outcome of the [NAME] investigations and received conflicting responses about whether [NAME] [NAME] complaints were upheld.

126. Turning now to the evidence, [NAME] [NAME] has worked in customer service for 16 years and for the [NAME] for 15 months. [NAME] [APPELLANT] first came in contact with [NAME] [RESPONDENT] in July 2018 when he took over the [NAME] management for the London and East area.

127. [NAME] [NAME] stated that he has never come across somebody who had subjected him to the amount of accusations against his good character that he had from [NAME] [RESPONDENT]. [NAME] asserted that [NAME] [RESPONDENT] constant accusations of incompetence and of obstructing him in his [NAME] against the Applicant was bringing him down. [NAME] [APPELLANT] said that [NAME] [RESPONDENT] had threatened that he would visit him at the Applicant’s Head Office and at his home, and that [NAME] [RESPONDENT] told him that he could interpret this statement how he liked. [NAME] [NAME], as a father of a young family, said he was fearful of these threats against him.

24 128. [NAME] [RESPONDENT]’ email at [A103] to [NAME] [RESPONDENT] dated 17 March 2019 raised six matters of complaint.

129. The first concerned [NAME] [NAME] allegation of improper use of his personal details. [NAME] [NAME] had responded to the effect that one of the residents at [NAME] had put together the list containing [NAME] [RESPONDENT]’ personal details and the Applicant had nothing to do with it. [NAME] [RESPONDENT] did not accept [NAME] [RESPONDENT] response, saying:

“I want this matter fully investigated by you or else one can conclude that you have something to hide. I am far from satisfied in the way you and your department have handled various complaints I have made to date, if you and your department wish to make matters personal by blatantly abusing your positions by fobbing off my valid complaints for personal reasons by persistently treating them with a totally negative attitude, then be prepared to take the fall out of your actions”.

130. The second concerned a claim for compensation in respect of “prints” which would be connected to the refusal to allow [NAME] [RESPONDENT] access to his garage after it had been sealed.

131. The third was a complaint against [NAME] who [NAME] [RESPONDENT] said was evasive about when repairs would take place.

132. The fourth involved the increase in service charge. [NAME] [RESPONDENT] said:

“I can’t abide [NAME] ripping off elderly residents while the service charge includes repairs that are not being carried 0ut thanks to the bloody mindedness of individuals like [NAME] who should be stacking shelves in [NAME]. As for your Warden when I go to court and prove beyond a shadow of doubt that I was not in [NAME] at the time she alleges I made a threat to her to be sacked for such a obnoxious and malicious lie. I have no intention of letting her get away with it while you ignore it and back her lies up”.

133. The fifth concerned [NAME]’s request for a visit from a senior member of staff, which he says was totally ignored.

134. [NAME] [RESPONDENT] recorded that he wanted the repair on the stairs done “without having to put up with stupid, immature, ignorant and bias excuses from feeble minded morons”. [NAME] [RESPONDENT] signed off his email with “well time for my cocoa and bed …. Us senile old codgers have to be in bed by ten with hot water bottle to keep us company”!

135. [NAME] [RESPONDENT]’ e-mail at [A111] to [NAME] [RESPONDENT] dated 22 March 2019 followed on from the email sent on 17 March 2019. [NAME] [RESPONDENT] pointed out to [NAME] [RESPONDENT] that he had not responded to his emails. [NAME] [RESPONDENT] went onto say that

“if you think for one minute that I intend to tolerate you abusing your position and failing to answer my questions and investigate my valid complaints in a responsible manner and take me for a fool in the

25 process, then expect to pay the consequences of your devious and underhanded actions. I want answers to my questions and a response to my mail from you regarding the five points made or would you prefer it (as you are blatantly abusing your position and treating me as a fool) that I call at your home to rectify the prevailing situation which I am more than entitled to do under the circumstances and no-one can stop me …. The choice is entirely your decision”.

“I am still waiting for your [NAME] [NAME] to proceed with threats to take me to court where I serve subpoena on several members of staff”.

136. On 25 March 2019 [NAME], [NAME] Manager, responded to [NAME] [RESPONDENT] in respect of the above email [A110]:

“I refer to your note below, in which I consider that you have made a direct threat to a member of the [NAME]. We have written to you many times in the past to ask that you moderate the way in which you speak to colleagues, which you have chosen to ignore and we have advised also that we will not keep replying to your concerns which we believe we have already dealt with.

As you have made the choice to disregard these requests I am writing to you today to advise that from this point on we will no longer correspond with you. Any email you send to us will be sent onto to our legal team for review and a decision will be made as to whether we take any action but we will not acknowledge or reply to you any further. Should our legal team deem it appropriate they will issue the relevant acknowledgment.

I can assure you that this is not a reaction solely to the email below but rather your consistent refusal to engage with us in a respectful way, despite us asking that you do this many times and ensuring that we have been professional at each step. I understand that many of our replies have not met with your approval, but this does not mean that they are incorrect or that we have given you incorrect information.

I will be providing a copy of this email to my team, along with our [NAME] and any other relevant colleague so that they are aware we have taken this step”.

137. [NAME] [RESPONDENT] replied to [NAME]’s email the same day stating that [A112]

“If you read under the yellow lines which you placed on my letter I wrote that I intended to serve a subpoena on various members of your staff, including I might add [NAME]. I or anyone else is entitled to call at the home of any member of staff to serve them with a subpoena so don’t try and twist my words to suit your own devious means. As for me not writing to various members of your staff in a respectful manner …. Then simply my reply to that is that I hold the evidence to show that they do not deserve to be treated in a responsible or respectable manner. All you have done is to try and twist my words and make a feeble excuse to stonewall me thus refusing to review my mails so that you do not have to reply to my questions which place [RESPONDENT] on the spot”.

26

138. [NAME] [RESPONDENT]’ response to [NAME] [RESPONDENT] witness statement is at [R52]:

“[NAME] produced a letter to the Tribunal regarding the comments I made regarding [NAME] and in which he “whines and whinges” regarding my opinion of his abilities, also his persistence in failing to carry out his duties in a reasonable and satisfactory manner.

Someone should explain to him that unlike North Korea, Iran or Russia we in the UK have freedom of speech and constitutional rights which include constructive criticisms regarding various individuals.

As is more plain to see this letter it appears that [NAME] is now full of self doubt regarding his ability to do his job. Well not before time I might add. For a less stressful vocational experience I suggest he should be encouraged to leave [NAME] and apply for a post with [NAME] at [NAME]”.

139. [NAME] [NAME] submitted an “Impact Statement” dated 23 July 2019 (unsigned) [A68]. [NAME] [RESPONDENT] said that the whole situation with [NAME] [RESPONDENT] had caused her a great deal of distress and upset. [NAME] [RESPONDENT] stated that as she could not avoid [NAME] [RESPONDENT] completely because she lived on site. [NAME] [RESPONDENT] said that [NAME] [RESPONDENT] had been verbally aggressive towards her, and asserted that [NAME] [RESPONDENT] had breached his agreement not to approach her except in an emergency which have gave following the alleged death threat. [NAME] [RESPONDENT] concluded that the incidents with [NAME] [RESPONDENT] had affected her ability to do her job because she felt unsafe in her office and anxious that she would meet [NAME] [RESPONDENT].

140. [NAME] [RESPONDENT] described [NAME] [RESPONDENT] impact statement as “utter baloney” [R92]. [NAME] [RESPONDENT] said that [NAME] [RESPONDENT] had approached him on several occasions when asked not to do so. [NAME] [RESPONDENT] said that he was aware that [NAME] [RESPONDENT] locked the Office door from the inside but never knew the reason why. [NAME] [RESPONDENT] asserted that when he had called on her, [NAME] [RESPONDENT] always unlocked the door to speak to him and at no time had [NAME] [NAME] sent him an email asking him not to call at the Office.

141. The Tribunal finds that [NAME] [RESPONDENT] has been a persistent complainant. The Tribunal considers that his complaints have raised legitimate matters in relation to the tenant and landlord relationship with the Application. The Tribunal identified that the complaints appeared to focus on three principal issues: repairs and maintenance, level of service charges, and the apparent failure of the Applicant to address [NAME] [APPELLANT] concerns. The Tribunal is not in a position to assess whether [NAME] [NAME] complaints were justified. The Tribunal notes that [NAME] [RESPONDENT] referred the Applicant’s handling of complaints to the [NAME] [NAME]. The outcome of the [NAME]’s investigations is not known to the Tribunal.

27 142. The Applicant relied upon the manner in which [NAME] [RESPONDENT] pursued his complaints to substantiate its assertion that [NAME] [RESPONDENT] had breached covenants in his lease. The Applicant said that [NAME] [RESPONDENT] was disrespectful and abusive towards members of its staff. The Applicant highlighted two emails from [NAME] [RESPONDENT] to substantiate its assertion.

143. The Tribunal finds that the language used by [NAME] [RESPONDENT] in the first email [A103] uncompromising and rude about the competence of certain members of staff (“not to fit to stack shelves at [NAME]”). The Tribunal is satisfied that [NAME] [RESPONDENT]’ description of the Applicant’s staff as “feeble minded morons” is insulting and offensive. The Tribunal accepts [NAME] [NAME] statement that he was brought down by [NAME] [NAME] constant attacks on his competence, and that [NAME] [NAME] was not just “whinging and whining” as suggested by [NAME] [RESPONDENT].

144. The Tribunal considers that [NAME] [RESPONDENT]’ reference in the second email [A111] to visiting [NAME] [NAME] at his home unfortunate and capable of being interpreted as a threat of violence. The Tribunal observes that [NAME] [RESPONDENT] corrected the misunderstanding on whether it was meant to be a physical threat immediately after it was pointed out by [NAME] when [NAME] [RESPONDENT] responded to the effect that his intention was to serve a subpoena on several members of staff including [NAME] [NAME].

145. The Tribunal’s interpretation of [NAME] email of 25 March 2019 [A110] is that following [NAME] [APPELLANT] email of 22 March 2019 [A111] the [NAME] would no longer respond to [NAME] [APPELLANT] complaints and pass any future complaints to the [NAME] to decide what action to take, if any. The Tribunal finds it significant that [NAME] did not choose to refer the email of 22 March 2019 to the lawyers for advice on potential proceedings against [NAME] [RESPONDENT].

146. The Tribunal considers [NAME] [RESPONDENT] impact statement should be considered in conjunction with the specific events involving [NAME] [RESPONDENT] and [NAME] that the Applicant relies on to establish a breach of covenant against [NAME] [RESPONDENT].

Discussion

147. The issue for the Tribunal is whether [NAME] [RESPONDENT] has breached the covenants at Clauses 4.13 and 4.8 of the lease.

148. The determination of this issue is primarily a question of fact. The Tribunal is required first to make findings in respect of each incident relied upon by the Applicant, and then if need be consider whether the findings constitute a breach of the said covenants.

28 149. As explained earlier the Tribunal did not consider that Regulation ii (the specified regulation under Clause 4.8 of the lease) added to the Applicant’s [NAME].

150. The Tribunal’s understanding is that the Applicant sought to establish that the acts complained of were unlawful or constituted a nuisance damage annoyance detriment or inconvenience to the Applicant or the owners, tenants or occupiers of any premises situate in the neighbourhood.

151. [NAME] [APPELLANT], for the Applicant did not elaborate upon the meaning of the words used in Clause 4.13 or indicate which consequence from the alleged acts of [NAME] [RESPONDENT] it relied upon.

152. The Tribunal’s construction of the relevant words in Clause 4. 13 is that a covenant against an unlawful act may be committed even though there has been no criminal prosecution for the acts complained of ([NAME] v Holloway [1982] 2 E.G.L.R.

153. The Tribunal refers to the Encyclopaedia of [NAME] and Practice, Volume 1 Chapter 1 1-002 for the meaning and scope of nuisance and annoyance:

““Nuisance” includes behaviour which would amount to the tort of nuisance, e.g. excessive noise, making a lot of dust, allowing water to overflow onto the premises of another, creating foul odours: Chapman v Hughes (1923) 129 L.T. 223; Parker v Elvin (1944) 143 E.G. 129, CA); ….. But is not to be confined to nuisance in this technical, legal sense: Harlow DC v Sewell [2000] E.H.L.R. 122 but construed in a natural way, and “annoyance” is in any event a term with a wider meaning, although it must be such as would annoy an ordinary occupier, not an ultra-sensitive one: Tod-[NAME] v Benham (1888) 40 Ch.D. 80;

The phrase “nuisance and annoyance” should be given a broad common sense meaning to the extent that sending abusive letters to the landlord’s offices came within the definition [NAME] v Borkwood [2005] J.H.L. D75…… “Nuisance and annoyance” encompasses such acts as threatening behaviour, use of bad language, graffiti and vandalism. It has also been held to include racial and sexual harassment: Woking BC v Bistram (1993) 27 H.L.R. 1, CA, and Kensington & [NAME] v [NAME] (1997) 29 H.L.R. 507, CA)”.

154. The Tribunal construes damage and detriment in similar terms as causing a loss to the persons who are the object of the convenant. The Tribunal interprets inconvenience as causing trouble or uneasiness to those persons.

155. The Applicant acknowledged that these proceedings had potentially serious consequences for [NAME] [RESPONDENT] and could result in the loss of

29 his home. The Applicant chose not to take the less serious option of applying for an injunction against [NAME] [RESPONDENT] under the Anti-Social Behaviour, Crime and Police Act 2014. [NAME] [COUNSEL], the Applicant’s solicitor, disagreed with [NAME] [COUNSEL] suggestion that the Applicant did not have sufficient evidence to opt for the injunction route. [NAME] [APPELLANT] said that the Applicant believed that the injunction would not be effective in view of the warnings he said that [NAME] [RESPONDENT] had received from the Police.

156. The Applicant’s approach in its statement of [NAME] was to coalesce a group of incidents involving [NAME] [RESPONDENT] over a period of two years, and ask for a determination that [NAME] [RESPONDENT] had breached Clause 4.13 and paragraph (ii) of the Fourth Schedule to the Lease. The Applicant made no attempt in the statement of [NAME] to analyse the incidents and state why the facts relied upon constituted a breach of the relevant clauses of the lease. At the outset of the hearing the Tribunal asked the Applicant to identify which incidents formed the basis of its [NAME].

157. Arguably this is a matter that the Tribunal should have sorted out earlier. The Tribunal, however, would refer to the “Further Directions” issued 27 September 2019 which sets out the difficulties particularly with [NAME] [RESPONDENT] that the Tribunal had in getting these proceedings to a hearing. The Tribunal also took the view that the Applicant is a professional landlord which has the necessary expertise to prepare a [NAME] for hearing and that the Tribunal should be reluctant to enter into the arena and tell a party how it should conduct its [NAME]. Finally the Tribunal considers that if it had taken this step, [NAME] [RESPONDENT] would have perceived the Tribunal as favouring the Applicant.

158. The essential feature of this [NAME] was that [NAME] [RESPONDENT] disputed all the facts relied upon by the Applicant to establish its [NAME]. The Tribunal procedures are not geared towards determining the credibility of witnesses. The proceedings are intended to be informal with evidence not normally upon oath.

159. The Tribunal’s task in evaluating the evidence was made more difficult by a range of features associated with the [NAME]. The Tribunal will consider these features before returning to its findings on each incident relied upon by the Applicant.

160. The alleged breaches of covenant concerned [NAME] [RESPONDENT]’ conduct. As a rule applications under section 168 of the 2002 Act involve discrete actions by the tenant such as allegations of unauthorised works or allegedly contravening prohibited uses of the dwelling. In such circumstances the fact finding is relatively straightforward and normally capable on the evidence of a definite answer. In this [NAME] the evaluation of [NAME] [RESPONDENT]’ actions have to be viewed in the context of the circumstances in which the conduct took place and the actions of the other persons involved.

30

161. [NAME] [RESPONDENT] is 73 years of age. In 2013 [NAME] [RESPONDENT] contracted Meningitis and was in a coma for three months. As a result of his illness [NAME] [RESPONDENT] experienced significant life changes. He became totally deaf and for a while was unable to walk after having five toes amputated. The Tribunal made reasonable adjustments to enable [NAME] [RESPONDENT]’ participation in the proceedings which included organising the hearing at his local court and arranging for a screen to text operator so that [NAME] [RESPONDENT] could follow what was being said. [NAME] [RESPONDENT] secured the services of Counsel pro bono through his own efforts.

162. [NAME] [COUNSEL] in his skeleton raised the issue of the Equality Act 2010. [NAME] [NAME] referred to section 15 of the 2010 which states that a person discriminates (A) against a disabled person (B) if A treats B unfavourably because of something arising in consequences of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

163. [NAME] [NAME] also cited section 35(1) which requires a person (A) who manages premises must not discriminate against a person (B) who occupies the premises … by evicting B (or taking steps for the purpose of securing B’s eviction).

164. The Applicant did not address the question of [NAME] [RESPONDENT]’ disability in relation to its evidence on his alleged conduct. The Tribunal observes that a frequent allegation made against [NAME] [RESPONDENT] was that he shouted at people. The Tribunal noted in the hearing that [NAME] [RESPONDENT] spoke in a very loud booming voice which was intimidating and in the Tribunal’s view a consequence of him being deaf. At this stage the Tribunal registers that [NAME] [RESPONDENT]’ disability added another layer of difficulty when evaluating the evidence against him.

165. The Applicant in its statement of [NAME] declared that [NAME] [RESPONDENT]’ behaviour had caused other residents to feel fearful and distressed. [NAME] [RESPONDENT] submitted in closing that [NAME] [RESPONDENT]’ behaviour had made peoples’ lives a misery.

166. The Applicant said that there were two groups of persons affected by [NAME] [RESPONDENT]’ behaviour. The first group comprised the residents who lived in the same block of flats as [NAME] [RESPONDENT] ([NAME], Mrs [RESPONDENT] and Mrs [RESPONDENT]) and Mrs [RESPONDENT] of 26 [NAME] and her friend Mrs [NAME]. The second group comprised the staff employed by the Applicant, [NAME] [APPELLANT] and [NAME] [APPELLANT].

167. The Applicant did not secure comprehensive witness statements from the residents who were said to be affected by [NAME] [NAME] behaviour. The witness statements of Mrs [NAME] and Mrs [NAME] were described as Anti-social behaviour incident forms and restricted to the incident on 2 January 2018. [NAME] [NAME] witness statement dealt only with the

31 alleged assault on 9 July 2018. The Applicant supplied no witness statements from Mrs [APPELLANT] and Mrs [APPELLANT].

168. The Applicant chose not to call the residents to give evidence at the hearing. [NAME] [NAME] said that the residents were too petrified of [NAME] [RESPONDENT] to attend the hearing but this was not substantiated by direct evidence from the residents. [NAME] [NAME] believed that Mrs [NAME] and Mrs [NAME] were in their eighties, whilst [NAME] [APPELLANT] was in his seventies.

169. The Applicant principally relied on [NAME] [APPELLANT] to prove the [NAME] on behalf of the residents. [NAME] [NAME] evidence in respect of the incidents involving the residents was largely hearsay. Although the Tribunal is not bound by the strict rules governing admissibility of evidence, the Tribunal is likely to attach less weight to hearsay than it would to direct testimony.

170. The Applicant’s approach in respect of its evidence for the incidents involving the residents posed challenges for the Tribunal when assessing questions of credibility in the absence of the principal witnesses to the events. The Tribunal observes that a consequence of the Applicant’s approach was that the voices of the residents were not heard at the hearing.

171. The hearing effectively pitched [NAME] against [NAME] [RESPONDENT]. [NAME] pointed out that [NAME] was an experienced and valued member of staff who had worked for the Applicant for over 12 years. [NAME] [APPELLANT] argued that [NAME] [NAME] had no reason to lie about the events in question.

172. In circumstances where it is one person’s word against another the Tribunal will look at what other evidence is available outside the protagonists.

173. The Applicant in its statement of [NAME] put forward as one of its grounds that [NAME] [NAME] behaviour had resulted in calls for the Police to attend [NAME] on a number of occasions. The Applicant did not include any statement from the Police in its documents bundle. In contrast [NAME] [RESPONDENT] included Notes from [RESPONDENT] at [R11] and [R29 30] which concerned the door incident on 2 January 2018 and the disabled car parking space on 28 January 2019, and emails from [NAME] [R25] & [R27] dealing with the incidents involving [NAME] [RESPONDENT].

174. [NAME] [RESPONDENT] acknowledged that the Notes from [RESPONDENT] were not formal witness statements. The origin of the Notes is that [NAME] was obliged to write down his comments in order to communicate with [NAME] [RESPONDENT] because of his deafness.

175. The Tribunal finds that [RESPONDENT] were supportive of [NAME] [RESPONDENT] and indicated that the actions of the other residents involved

32 were unreasonable. [NAME] [RESPONDENT] exonerated [NAME] [RESPONDENT] from culpability in respect of the alleged assault on [NAME] [APPELLANT].

176. The Tribunal gave the Applicant an opportunity to comment on the documents from the Police officers included in [NAME] [NAME] bundle.

177. In respect of [APPELLANT] email the Tribunal sought the Applicant’s response prior to the hearing. [NAME] [APPELLANT] response was:

178. At the hearing [NAME] [RESPONDENT] said that the Police Officers were very reluctant to take action given the age of the persons involved.

179. The Tribunal considers that the Applicant was put on notice of the potential probative value of [NAME] [APPELLANT] statement, and that it was incumbent upon the Applicant to seek at the very least clarification from [NAME] [NAME] of the Police’s position in respect of the various incidents if it wished to present an alternative explanation of what had been said by the various Police Officers involved. It also became apparent during the hearing that there appeared to be documents from the Police which had been sent to [NAME] [NAME], however, none of those documents had been included in the Applicant’s hearing bundle.

180. [NAME] [RESPONDENT] produced statements from Mrs [RESPONDENT] and Mrs [RESPONDENT]. The Tribunal notes that Mrs [NAME] was the former Estate Manager of [NAME] and Mrs [NAME] was [NAME] [RESPONDENT]’ carer and had been employed in the past by the Applicant.

181. The Tribunal asked [NAME] [APPELLANT] and [NAME] [NAME] for their views on Mrs [NAME] evidence. [NAME] [NAME] said that Mrs [NAME] employment had ended on the 4 February 2014 and that she had only dealt with [NAME] [RESPONDENT] for a matter of weeks. [NAME] [RESPONDENT] was asked about Mrs [RESPONDENT] comment that [NAME] [RESPONDENT] had been targeted by other residents. [NAME] [RESPONDENT] accepted that it was very difficult to find out what was genuine and what was not but she did not think it was fair to say he had been targeted. [NAME] [NAME] said that she had taken steps to prevent escalation of the dispute by speaking to residents and explaining there will always be noise in blocks of flats and that she would say if complaints were unfounded.

33 182. [NAME] [RESPONDENT] had obtained the statements of Mrs [RESPONDENT] and Mrs [NAME], the Tribunal considered that they brought an independent perspective to the circumstances of the [NAME].

183. The Tribunal noted that Mrs [APPELLANT] had worked for the Applicant for 28 years and had continued to keep in touch with many of the residents of [NAME]. Mrs [RESPONDENT] comments that she believed that [NAME] [RESPONDENT] was being targeted over the smallest things and that unless nipped in the bud it becomes war and that the older people get, the less tolerant and empathy they have with others especially people less able than themselves resonated with the Tribunal when it evaluated aspects of the [NAME].

184. Mrs [RESPONDENT] highlighted the personal difficulties facing [NAME] [RESPONDENT] who suddenly in his sixties had to adapt to a world of silence and learn to walk again. Mrs [NAME] also sadly witnessed other peoples’ lack of empathy and intolerance to his situation. Mrs [RESPONDENT] pointed out that [NAME] [RESPONDENT] had no control over the volume of his speech as a result of his deafness and talked louder than before. Mrs [NAME] said she never found communication with [NAME] [RESPONDENT] a problem provided the person was patient and wrote things down for him.

185. Mrs [NAME] also said that she had witnessed several incidents which appeared to be part of a vendetta against him. Mrs [NAME] referred to unmeritorious complaints about him, such as considering his walker a fire risk and of noise emanating from his Flat when he was not there.

186. Mrs [APPELLANT] cited various incidents when repairs to the Applicant’s Flat were not attended to promptly which included the emergency call system and meant that [NAME] [RESPONDENT] was without any form of emergency assistance over Christmas.

187. The Tribunal highlighted earlier that the burden of proof on the balance of probabilities rests with the Applicant. The Tribunal’s duty as a fact finding Tribunal is to determine the disputed facts on the evidence and should only resort to burden of proof to resolve a disputed question of fact in exceptional circumstances.

188. Recently the Upper Tribunal in [COMPANY] and [NAME] [NAME] [2020] UKUT 0003 identified the relevant Authorities which sets out the circumstances when a fact-finding Tribunal can properly fall back on the burden of proof to resolve a disputed question of fact.

189. The Tribunal cites a selection of the Authorities mentioned by the Upper Tribunal.

190. [ADDRESS] of [NAME] in Ashraf v Akram [1999] EWCA Civ 640, concerned a fight between the claimant and the defendant, each of whom sued the other for assault. The trial Judge dismissed both claims on the ground that neither had satisfied the burden of proof. [NAME] LJ began his judgment by saying this:

34 “The authorities confirm what one would expect, namely that a trial judge's duty is to decide the issues relevant to his judgment and not to evade them. But the authorities also recognise that there will be the occasional [NAME] in which the common path to the resolution of the ultimate issue, namely who is telling the truth, is blocked by an intractable evidential tangle. In such a [NAME] it may be not only legitimate but inevitable that the judge will hold that the plaintiff has failed to show a preponderance of evidential probability in favour of his [NAME]. Where there are cross-claims, in such a situation the counterclaim will also logically fail.” 191. A recent review of the relevant authorities is contained in the judgment of [NAME] (with whom [NAME] LJ agreed) in the decision of the Court of Appeal in Constandas v Lysandrou [2018] EWCA Civ 613 at [22]- [27]. [NAME] began her review by referring to Stephens v Cannon [2005] EWCA Civ 222, and the following propositions ([46]): "(a) The situation in which the court finds itself before it can despatch a disputed issue by resort to the burden of proof has to be exceptional. (b) Nevertheless, the issue does not have to be of any particular type. A legitimate state of agnosticism can logically arise following enquiry into any type of disputed issue. It may be more likely to arise following an enquiry into, for example, the identity of the aggressor in an unwitnessed fight; but it can arise even after an enquiry, aided by good experts, into, for example, the cause of the sinking of a ship. (c) The exceptional situation which entitles the court to resort to the burden of proof is that, notwithstanding that it has striven to do so, it cannot reasonably make a finding in relation to a disputed issue. (d) A court which resorts to the burden of proof must ensure that others can discern that it has striven to make a finding in relation to a disputed issue and can understand the reasons why it has concluded that it cannot do so. The parties must be able to discern the court's endeavour and to understand its reasons in order to be able to perceive why they have won and lost. An appellate court must also be able to do so because otherwise it will not be able to accept that the court below was in the exceptional situation of being entitled to resort to the burden of proof. (e) In a few cases the fact of the endeavour and the reasons for the conclusion will readily be inferred from the circumstances and so there will be no need for the court to demonstrate the endeavour and to explain the reasons in any detail in its judgment. In most cases, however, a more detailed demonstration and explanation in a judgment will be necessary."

35 192. [NAME] then referred to the fact that the propositions in Stephens v Cannon had been refined by the Court of Appeal in [NAME] v Devon Waste Management [2007] EWCA Civ 835. The issue in that [NAME] concerned the circumstances in which an industrial accident had taken place. Auld LJ expressed the relevant principles as follows: "19. …First, a judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence. Secondly, the Court of Appeal should only intervene where the nature of the [NAME] and/or the judge's reasoning are such that he could reasonably have been able to make a finding one way or the other on the evidence without such resort.

24. When this court in Stephens v Cannon used the word "exceptional" as a seeming qualification for resort by a tribunal to the burden of proof, it meant no more than that such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his [NAME]. The burden of proof remains part of our law and practice - and a respectable and useful part at that - where a tribunal cannot on the state of the evidence before it rationally decide one way or the other." 193. The Tribunal has highlighted in the preceding paragraphs the evidential challenges encountered with this Application. The Tribunal has resorted to the burden of proof in respect of some of the incidents relied upon by the Applicant to establish a breach of the covenant. The Tribunal’s reasoning for adopting that route is explained in its findings on the relevant incidents.

194. The final issue before evaluating the findings on each incident is the question of waiver of breach of covenant.

195. Judge Huskinson in [COMPANY] v [NAME]/12/2007 established that the Tribunal had jurisdiction under an application under section 168 (2)(a) of the 2002 Act to establish whether the landlord had waived the right to assert against the tenant that the admitted facts constituted a breach of the covenants at all.

196. Judge Huskinson went on to explain his reasoning on the Tribunal’s jurisdiction:

“The purpose of a determination under section 168(2)(a) is in my judgment to bring the parties to the same position as would be reached if section 168(2)(b) was engaged by reason that “the tenant has admitted the breach”. This contemplates an admission by a tenant that it has committed an actionable breach of covenant. Paragraph (b) does not contemplate an admission by a tenant that it has done an act which, judged strictly, would be a breach of covenant but which the

36 tenant asserts the landlord is not entitled to complain about for reasons of waiver/estoppel. It is important to note that the LVT, when concluding that the Appellant had waived the relevant breaches, was using this expression to mean not that the Appellant had waived the right to forfeit the lease on the basis of the relevant breaches but in the sense that the Appellant had waived the right to assert against the Respondent that the admitted facts constituted a breach of the covenants at all. Accordingly in answering the question posed by section 168(2)(a) as to whether the breach has occurred the LVT needs to decide (and must consequently have jurisdiction to decide) whether at the relevant date the covenant was suspended by reason of a waiver or estoppel (in which [NAME] a breach will not have occurred) or whether at the relevant date the covenant was not suspended (in which [NAME] a breach will have occurred if the facts show non-compliance with the terms of the covenant)”. 197. There was some doubt on whether Judge Huskinson’s decision was binding upon the FTT because it preceded the formation of the FTT and UT structure. Also some commentators considered that the decision was obiter because it involved one party and was not fully argued. Those reservations were put to rest by the Upper Tribunal decision in [COMPANY] v [NAME] and Aileen Mary Seymour [2016] UKUT 03252 which confirmed the Tribunal’s jurisdiction to determine whether the landlord had become estopped from relying upon the covenant or had waived the right to do so. 198. [NAME] [APPELLANT] explained in evidence that the Applicant had an Anti- Social Behaviour policy3 which had been applied in the [NAME] of [NAME] [RESPONDENT]. Essentially the policy required the Applicant to give a final warning letter to the effect that the Applicant would take action against the tenant if s/he committed the behaviour again. The application of the policy is relevant to whether there has been a waiver. The issue is whether the Applicant’s indication that it would take no action in respect of the alleged breach but would take action in the event of a future breach amounted to a suspension of the covenant by waiver at the relevant date. 199. The Tribunal raised the question of waiver with the Applicant at the hearing. [NAME] [APPELLANT] did not consider that the Applicant had waived the breach connected with the allegation of the threat to kill. [NAME]

2 At the end of the hearing [NAME] [NAME] on reading Roundlistic sought to put forward a [NAME] on Unfair Contract Terms. The Tribunal is satisfied that [NAME] [NAME] submission was “Off the Cuff” and did not merit consideration. 3 A copy of the policy was not included in the Applicant’s documents bundle.

37 [APPELLANT] argued that there was no waiver because the Applicant had decided to take no action at that point.

200. The Tribunal now turns to its findings on each incident.

Cascading Water in July 2017

201. The Tribunal accepted that [NAME] [RESPONDENT] was cleaning the inside of his window at the time of the incident, and that as a consequence water is likely to fall from the upstairs window. The Tribunal finds that the act complained of is “cleaning windows”.

202. The Tribunal decides that the act of cleaning windows does not constitute a breach of the covenant at Clause 4.13.

Shouting and Kicking the Door on 2 January 2018

203. The Tribunal finds in relation to the incident on 2 January 2018 that (1) The Applicant had arranged for the door to be unlocked until 8pm as a reasonable adjustment to [NAME] [NAME] disability. (2) Mrs [NAME] had no good reason to keep the door locked at 2.00 pm. (3) [NAME] [RESPONDENT] required the door to be open so that he could receive urgent medication, Mrs [RESPONDENT] and Mrs [RESPONDENT] were aware of that fact. (4) [NAME] [RESPONDENT]’ attempts of dealing with the problem by re-opening the door and leaving a note were the actions of a person behaving reasonably in what would have been a very stressful situation. (5) [NAME] [RESPONDENT] was entitled to ask Mrs [RESPONDENT] to desist from the closing the door, particularly after she ignored the note. (6) [NAME] [RESPONDENT] resorted to kicking Mrs [RESPONDENT] door twice and shouting only after Mrs [NAME] had failed to acknowledge the knock on the door, and the shouting through the letter box. (7) The Tribunal is satisfied that the actions of kicking the door and shouting were out of frustration rather than a violent act. It is telling that [NAME] [RESPONDENT] stopped kicking the door after he was tapped on the shoulder by Mrs [NAME]. (8) [NAME] [RESPONDENT] then asked for [NAME] [RESPONDENT] help. (9) The Police had been summoned by the time that [NAME] [NAME] arrived on the scene. (10). The Police took no action against [NAME] [RESPONDENT], and the evidence suggested that the Police believed that the problem rested with Mrs [RESPONDENT] rather than with [NAME] [RESPONDENT].

204. [NAME] highlighted [NAME] [RESPONDENT] admission that he had kicked the door. [NAME] [NAME] submitted that such action should not be trivialised, and asserted that residents in their eighties would be traumatised by such action.

205. The Tribunal considers that the interpretation of the act of kicking should be viewed in the context of all the circumstances. Mrs [NAME] and Mrs [NAME] knew the reason why the door had to remain open so that [NAME] [RESPONDENT] could be assured of receiving vital medication. The Tribunal finds on the facts presented that there was no good reason for Mrs [NAME] to close the door and that she must have known that her

38 actions would have exacerbated what would have been a stressful situation for [NAME] [RESPONDENT]. It is telling that Mrs [NAME] tapped [NAME] [RESPONDENT] on the shoulder when he was kicking the door which suggested that Mrs [RESPONDENT] was not fearful of [NAME] [RESPONDENT].

206. The Tribunal is satisfied that [NAME] [RESPONDENT] did his best to act reasonably throughout this whole unfortunate episode and that the actions of kicking the door and shouting were out of frustration and in response to the unreasonable actions by Mrs [NAME]. The Tribunal does not consider the actions of [NAME] [RESPONDENT] on 2 January 2018 constitued a breach of the covenant at clause 4.13 of the lease.

207. The Tribunal finds that if there was a breach of covenant the Applicant waived it. The Applicant decided to take no action in respect of this incident, and its attempt to resurrect it after 18 months would plainly be unjust.

“Go Back to Poland” on 4 January 2018

208. The Tribunal found in relation to the incident on 4 January 2018 that the allegation of “Go back to Poland” is racist conduct which potentially is a criminal act. The Applicant had the burden of proving the allegation on the balance of probabilities. Where the allegation is serious the Tribunal would expect the Applicant to adduce persuasive evidence. The Applicant relied solely on [NAME] [APPELLANT] testimony, which was not corroborated by a contemporaneous note of what happened on 4 January 2018. The Applicant did not produce in evidence the letters purportedly sent to [NAME] [RESPONDENT] after the meeting on 9 January 2018. [NAME] [RESPONDENT] flatly denied that he said the racist comment and denied that he knew that [NAME] [NAME] was Polish. [NAME] [NAME] fairly said that she could not remember whether she had told [NAME] [RESPONDENT] that she was Polish.

209. The Tribunal considers this is a [NAME] where it is required to resort to burden of proof. The only way this can be resolved on the facts is a clear finding that one of the parties was lying. The Tribunal is unable to reach such a determination because the accusation of lying was not put to either [NAME] or [NAME] [RESPONDENT] by the representative from the other side.

210. The Tribunal found that the Applicant’s [NAME] was weak which was further undermined by the events of the Applicant’s meeting with [NAME] [RESPONDENT] on 11 April 2018.

211. The Tribunal is satisfied that the Applicant has failed to establish on balance of probabilities that [NAME] [RESPONDENT] made the racist comment with the result that there is no breach of the covenant at clause 4.13 of the lease.

212. The Tribunal also finds that if there was a breach of covenant the Applicant waived it. The Applicant decided to take no action in respect

39 of this incident, and its attempt to resurrect it after 18 months would plainly be unjust.

Alleged threat to kill on 16 May 2018

213. The Tribunal finds that a threat to kill an extremely serious allegation. The Tribunal considers that a finding of [NAME] [RESPONDENT] uttering a threat to kill required compelling evidence on the part of the Applicant.

214. The Tribunal finds that the Applicant’s evidence is weak when set against the entirety of the evidence given at the hearing. The Applicant relied entirely on [NAME] [APPELLANT] testimony. The Applicant made no attempt to question the [NAME] who were working in close vicinity of where the incident happened. [NAME] [RESPONDENT] produced reliable evidence that he was elsewhere when the said incident took place, and his account is supported by a witness statement of his niece, [NAME] [APPELLANT]. The Tribunal was not convinced by the Applicant’s attempts to undermine [NAME] [APPELLANT] evidence.

215. The Tribunal’s view about the weakness of the Applicant’s [NAME] is reinforced by [NAME] [APPELLANT] decision on 25 May 2018 not to take any further action against [NAME] [RESPONDENT] in respect of the allegation of “threat to kill”.

216. On the strength of the evidence the Tribunal is satisfied that [NAME] [RESPONDENT] was elsewhere when the alleged threat was made. The Tribunal decides that there has been no breach of the covenant at clause 4.13 of the lease.

217. The Tribunal questions the propriety of the Applicant’s decision to include the threat to kill as a ground for the present application for breach of covenant when it previously said that it would take no further action. In the Tribunal’s view if the said threat had taken place the Applicant’s actions amounted to a waiver of the said breach.

Alleged Assault on [NAME] [NAME] on 9 July 2018

218. The Tribunal finds that in these circumstances where there is a clear conflict in the versions put forward by the participants to the incident, the Applicant should have called [NAME] [APPELLANT] to give evidence so that the Tribunal could assess the credibility and reliability of his evidence. The Tribunal finds that [NAME] [NAME] account of being throttled but still able to write a note to [NAME] [RESPONDENT] implausible.

219. The Tribunal gives weight to the outcome of [NAME] [NAME] investigation which decided that no culpability and no blame could be put on [NAME] [RESPONDENT] for the alleged assault. The Tribunal is not persuaded by the Applicant’s response to [NAME] [APPELLANT] decision. The Tribunal considers that the Applicant was put on notice that the Tribunal was likely to place weight on [NAME] [APPELLANT] investigation. The Tribunal may have found the Applicant’s response more

40 convincing if enquiries had been made of [NAME] before it gave its view on [NAME]’s decision.

220. The Tribunal finds on the evidence that the alleged assault did not take place and that there was no breach of the covenant at clause 4.13 of the lease.

Abusive Comment to [NAME] [NAME] on 27 September 2018

221. The Tribunal finds that [NAME] [RESPONDENT] said to [NAME] on 27 September 2018 “Go fuck yourself. You are the cause of all this trouble. You told [NAME] [NAME] that I told you to go back to Poland and that if [NAME] [NAME] pulled something like this again this would not be the end of it.

222. The Tribunal is satisfied that [NAME] [RESPONDENT]’ use of “Go fuck yourself” and his statement “if [NAME] [NAME] pulled something like this again” directed to [NAME] [NAME] amounted to foul language and threatening behaviour. The Tribunal finds that such behaviour and language constituted an act which may be illegal, and a nuisance and annoyance to [NAME] [NAME].

223. [NAME] [NAME] submitted that an isolated act of swearing did not breach the covenant at clause 4.13 of the lease. The Tribunal disagrees. The act of swearing was accompanied by a threat and there was no justification for [NAME] [RESPONDENT] behaviour. The Tribunal is satisfied that [NAME] [RESPONDENT]’ conduct to [NAME] [RESPONDENT] crossed the threshold of the prohibited behaviour as set out in clause 4.13 of the lease.

224. The next question is whether the Applicant waived the breach of covenant. The Tribunal accepts in this [NAME] that [NAME] [NAME] in his communication of 27 September 2018 told [NAME] [RESPONDENT] that the Applicant would not tolerate his unacceptable behaviour and that action would be taken against him. This was different from the other warnings given to [NAME] [APPELLANT] where the Applicant indicated that it was not taking action on the complained conduct but would do so in the future if he repeated the unacceptable behaviour.

225. [NAME] informed [NAME] [RESPONDENT] that the Applicant would apply to court for an anti-social behaviour injunction and that he would consult his colleagues in the [NAME] about the breaches in his lease. [NAME] [NAME] did not specifically state that proceedings would be taken for breach of covenant. [NAME] [APPELLANT] said that in December 2018 the Applicant decided not to pursue the injunction but instead go down the breach of covenant route. The Applicant provided no evidence that its decision not to pursue the injunction was communicated to [NAME] [RESPONDENT]. Equally there was no evidence that the Applicant had advised [NAME] [RESPONDENT] that it was going to take proceedings for breach of covenant. Following this incident in September 2018, there were other incidents where the Applicant

41 could have instigated proceedings for breach of covenant straightaway but chose not to do so.

226. The Applicant’s application for breach of covenant was made on the 14 May 2019, nearly eight months after the events on 27 September 2018. The Application did not specify the incidents upon which the Applicant relied to establish its [NAME] for a breach of covenant. [NAME] [RESPONDENT] would not have known that his conduct on the 27 September 2018 formed part of the Applicant’s [NAME] until he received a copy of [NAME] [APPELLANT] witness statement which was dated 23 July 2019 some ten months after the alleged incident.

227. The Tribunal finds that the Applicant’s inaction for a period of eight months in respect of the breach of covenant committed on 27 September 2018 and its delay of 10 months in identifying the circumstances of the breach of covenant amounted to a waiver of the breach with the result that the Applicant is disentitled from asserting that it was a breach of covenant.

DIY work on the Communal Stairs on 12 to 14 October 2018

228. The Tribunal finds that [NAME] [RESPONDENT] did works to the communal stairs for which he had no authority to carry out. The Tribunal observes that the Applicant has not pleaded “unauthorised works to communal areas” as a breach of covenant which potentially would have fallen under clause 4.5 of the lease.

229. Instead the Applicant asserted that [NAME] [RESPONDENT] was doing an act which was annoying to the other residents in the block of flats. On the information provided the DIY did not take place during the hours of 11.00pm to 7.00am which were the times specified in clause (ii) of the Fourth schedule for not making an audible noise outside the dwelling. The Applicant did not substantiate the allegation with a witness statement from the resident concerned or with the e-mail sent to [NAME] [NAME]. The Tribunal is not prepared to make an adverse finding against [NAME] [RESPONDENT] in the absence of direct evidence from the persons affected by his DIY activity.

230. The Tribunal finds that [NAME] [RESPONDENT] did not breach the covenants at clause 4.8 (regulation (ii) of the Fourth Schedule) and clause 4.13 of the lease.

Racist Comments to [NAME] [NAME] on 22 October 2018

231. The Tribunal has no direct evidence from [NAME] [APPELLANT] in respect of the alleged racist insult. The Applicant again has not supplied copies of the emails relied on and the correspondence from the Police. The Tribunal prefers the evidence of [NAME] [RESPONDENT] because he has given an explanation for why [NAME] [RESPONDENT] may have made up these complaints against him. [NAME] [RESPONDENT] has exhibited correspondence with

42 [NAME] [NAME] which is emollient in tone and supportive of [NAME] [RESPONDENT]’ predicament.

232. The Tribunal finds that the incident on the 22 October 2018 did not constitute a breach of covenant at clause 4.13 of the lease.

Disabled Car Parking Space: 28 January 2019

233. The Tribunal finds that the Applicant advanced no good reason why Mrs [APPELLANT] parked her vehicle there. The Tribunal agrees with [NAME] [NAME] assessment that Mrs [NAME] act of parking her car there was intended to provoke him and cause trouble. What followed was a shouting match between Mrs [NAME] and [NAME] [RESPONDENT] where it appeared that both of them gave as good as they got. The Tribunal is satisfied that the Applicant adduced no evidence to indicate that Mrs [APPELLANT] and Mrs [NAME] were distressed by the incident.

234. The Tribunal considers that [NAME] [RESPONDENT]’ behaviour on 28 January 2019 should not be looked at in isolation of the circumstances. The Tribunal finds that it was reasonable for [NAME] [RESPONDENT] to raise with Mrs [RESPONDENT] the issue of parking her car in the disabled parking bay. The Tribunal does not understand why Mrs [NAME] chose to park her car there. The fact that the disabled parking bay is advisory is not the point. Responsible citizens understand that they should not be parking in those bays unless they have a blue badge.

235. The Tribunal accepts that it has not heard from Mrs [NAME] direct and that she may have a perfectly good explanation. However, that was for the Applicant to arrange and the Tribunal can only base decision on the facts it heard.

236. [NAME] [RESPONDENT] accepted that he used an expletive once and got into an argument with Mrs [NAME]. The Tribunal, however, finds that the use of the expletive in the circumstances was understandable, and that Mrs [NAME] and Mrs [NAME] bore equally responsibility for the ensuing argument.

237. Having regard to all the circumstances the Tribunal decides that [NAME] [NAME] has not breached the covenant at clause 4.13 to the lease.

Loud Banging: 13 June 2019

238. The Tribunal is satisfied that that the allegation has no substance. The Applicant has chosen not to identify the complainants. Further the operators of [NAME] did not hear any noises during their contact with [NAME] [RESPONDENT]. Finally even if [NAME] [RESPONDENT] was hammering at the times and duration alleged, the Tribunal does not consider that so unreasonable as to cause a nuisance.

239. The Tribunal decides that [NAME] [NAME] has not breached the covenant at clause 4.13 to the lease.

43

Acted in Abusive Manner to the Applicant’s Members of Staff

240. The Tribunal finds that the language used by [NAME] [RESPONDENT] in the first email [A103] uncompromising and rude about the competence of certain members of staff (“not to fit to stack shelves at [NAME]”). The Tribunal is satisfied that [NAME] [RESPONDENT]’ description of the Applicant’s staff as “feeble minded morons” is insulting and offensive. The Tribunal accepts [NAME] [NAME] statement that he was brought down by [NAME] [NAME] constant attacks on his competence, and that [NAME] [NAME] was not just “whinging and whining” as suggested by [NAME] [RESPONDENT].

241. The Tribunal considers that [NAME] [RESPONDENT]’ reference in the second email [A111] to visiting [NAME] [NAME] at his home unfortunate and capable of being interpreted as a threat of violence. The Tribunal observes that [NAME] [RESPONDENT] corrected the misunderstanding on whether it was meant to be a physical threat immediately after it was pointed out by [NAME] when [NAME] [RESPONDENT] responded to the effect that his intention was to serve a subpoena on several members of staff including [NAME] [RESPONDENT].

242. The Tribunal is satisfied that [NAME] [RESPONDENT] had no good reason to use insulting and offensive language in the email. The Tribunal acknowledges [NAME] [RESPONDENT]’ dissatisfaction with the competence of the staff employed by the Applicant but that does give him the right to use offensive and insulting language to express his dissatisfaction. The Applicant opted to rely on the contents of the email at [A103] as an example of his continuing abusive behaviour towards the [NAME]. The Tribunal accepts that it is not an isolated act but part of a course of conduct directed at the [NAME].

243. The Tribunal accepts that [NAME] [RESPONDENT] immediately corrected the interpretation of a threat placed by [NAME] [NAME] on the words used in the second email[A111]. The Tribunal, however, agrees with [NAME] [RESPONDENT] interpretation, and that [NAME] [RESPONDENT] was reckless in the manner in which he phrased it. It was not obvious to the Tribunal when reading the email [A111] that it referred to a subpoena.

244. The Tribunal finds that language used in the two emails constituted an act which may be illegal, and a nuisance and annoyance to [NAME] [RESPONDENT]. The Tribunal is satisfied that [NAME] [RESPONDENT]’ conduct to [NAME] [RESPONDENT] crossed the threshold of the prohibited behaviour as set out in clause 4.13 of the lease.

245. The Tribunal’s interpretation of [NAME] email of 25 March 2019 [A110] is that following [NAME] [APPELLANT] email of 22 March 2019 [A111] the [NAME] would no longer respond to [NAME] [APPELLANT] complaints and pass any future complaints to the [NAME] to decide what action to take, if any. The Tribunal finds it significant that [NAME] did not choose to refer the emails of

44 the 17 and 22 March 2019 to the lawyers for advice on potential proceedings against [NAME] [RESPONDENT].

246. The Tribunal is satisfied that [RESPONDENT] email of 25 March 2019 evinced a clear intention on the part of the Applicant that it would take no action in respect of the offensive language used in the two emails but would take action in the event of future repetitions of such conduct. The Tribunal finds that this amounted to a suspension of the breach of covenant and that the Applicant waived its right to pursue proceedings for breach of covenant.

Decision

247. The Tribunal decides that [NAME] [RESPONDENT] has not breached the covenants at clauses. 4.8 and 4.13 of the lease, and that the Application should be dismissed.

248. The Tribunal’s determination for each incident relied upon by the Applicant is set out in paragraphs 201-246.

249. [NAME] [RESPONDENT] has been successful with his defence to the application, this does not mean that the Tribunal finds that his conduct was beyond reproach throughout the period in question. The Tribunal found in three incidents there were potential breaches of covenant but two of those breaches had been waived by the Applicant, and the third did not engage the covenant at clause 4.13. The Tribunal found in respect of other breaches, that the Applicant did not fully appreciate that this was legal process and that it was necessary to bring more compelling evidence to the Tribunal to establish its [NAME]. Equally there were some incidents where more consideration should have been given to [NAME] [RESPONDENT] and his disability.

45 RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the [NAME].

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking

46 Appendix 1

Relevant legislation

Commonhold and Leasehold Reform Act 2002

Section 168

(1) A landlord under a long lease of a dwelling may not serve a notice under section 146(1) of the Law of Property Act 1925 (c 20) (restriction on forfeiture) in respect of a breach by a tenant of a covenant or condition in the lease unless subsection (2) is satisfied.

(2) This subsection is satisfied if— (a) it has been finally determined on an application under subsection (4) that the breach has occurred, (b) the tenant has admitted the breach, or (c) a court in any proceedings, or an arbitral tribunal in proceedings pursuant to a post-dispute arbitration agreement, has finally determined that the breach has occurred.

(3) But a notice may not be served by virtue of subsection (2)(a) or (c) until after the end of the period of 14 days beginning with the day after that on which the final determination is made.

(4) A landlord under a long lease of a dwelling may make an application to [the appropriate tribunal] for a determination that a breach of a covenant or condition in the lease has occurred.

Section 169

(7) Nothing in section 168 affects the service of a notice under section 146(1) of the Law of Property Act 1925 in respect of a failure to pay— (a) a service charge (within the meaning of section 18(1) of the 1985 Act), or (b) an administration charge (within the meaning of Part 1 of Schedule 11 to this Act).

47 Appendix 2

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

[NAME]

:

CHI/43UD/LBC/2019/0021

Property

:

18 [NAME], Guildford, Surrey [POSTCODE]

Applicant: [redacted]

:

---

Respondent: [redacted]

:

---

Type of Application

:

Determination that a breach of covenant has occurred

Tribunal Member(s)

:

Judge M Tildesley OBE

Date and venue of CMH

:

---

Date of Directions

:

27 September 2019

FURTHER DIRECTIONS

48

This is a formal order of the Tribunal which must be complied with by the parties. The Tribunal directs that the parties must comply with the STATEMENT ON TRIBUNAL RULES AND PROCEDURE issued 1 February 2019 which is enclosed with the first set of directions.

Background

1. On 28 May 2019 the Applicant landlord sought a determination under subsection 168(4) of the Commonhold and Leasehold Reform Act 2002 (“the Act”) that a breach of covenant contained in the Respondent’s lease has occurred. In particular, the Applicant asserts that the Respondent has committed acts of nuisance, annoyance, detriment or inconvenience to other owners, tenants or occupiers of premises in the neighbourhood, arising from his alleged anti-social behaviour.

2. The Applicant landlord is [APPELLANT] which describes itself as the largest provider of specialist [NAME] and care for older people in England.

3. The Landlord’s, extended reasons for the Application dated 23 July 2019 stated that

Between the period July 2017 to July 2019

• That [NAME] [RESPONDENT] (the Respondent) acted in an aggressive manner towards other residents and subjected them to verbal abuse.

• That [NAME] [RESPONDENT] physically assaulted another resident.

• That [NAME] [RESPONDENT] was found to be kicking and banging on a resident’s property door and shouting through their letter box.

• That [NAME] [RESPONDENT] has made a death threat to the Estate Manager.

• That [NAME] [RESPONDENT] used racially abusive language towards another resident.

• That [NAME] [RESPONDENT] made a racist remark to the Estate Manager.

• That [NAME] [RESPONDENT] has acted in an abusive manner towards other employees of the Applicant.

• That [NAME] [APPELLANT] behaviour has caused other residents to be fearful and distressed.

49

• That [NAME] [NAME] behaviour has caused the Estate Manager to feel anxious to the effect that s/he no longer feels safe working in [ADDRESS].

• That [NAME] [NAME] behaviour has resulted in calls for the Police to attend [NAME] on a number of occasions.

4. On 4 July 2019 the Tribunal directed the Applicant to send extended reasons to [NAME] [RESPONDENT] and the Tribunal by 25 July 2019. [NAME] [RESPONDENT] was required to provide his statement of [NAME] by 15 August 2019. The parties were directed to supply dates to avoid during the period 7 October to 15 November 2019.

5. On 24 July 2019 the Tribunal informed the parties that the hearing had been arranged for 24 October 2019 and that it wished to inspect the property.

6. On 25 July 2019 [NAME] [RESPONDENT] sent an email to the Tribunal saying that he was recently discharged from hospital after being ill for six weeks and being admitted into hospital with [NAME], and that he had to go to [COMPANY] to have a pre-operation assessment. [NAME] [RESPONDENT] added

“I will not be dictated to by your dept or any other regarding what I should do or should not do regarding dates etc under prevailing circumstances and I will not be bullied intimidated or rushed into things simply to please [NAME] [NAME]. I am not working to your Tribunal’s timeline I am working with mine due to my medical circumstances which are serious”.

[NAME] [RESPONDENT] also questioned the Tribunal’s intention to inspect his property. [NAME] [RESPONDENT] added that he was deaf and severely disabled.

7. On 30 July 2019 a Procedural Judge reviewed the file and instructed a response to be sent to [NAME] [RESPONDENT] which referred to the Statement of Tribunal Rules and Procedure and stated that

• The Tribunal is unable to respond to general correspondence unless it is copies to the other side. • Applications for extension of time must be on a prescribed form • If you require any special measures or facilities at the hearing as a result of any disability you should inform the tribunal of these in writing in advance. • The Tribunal’s inspection would take place in your presence and time be allowed for travel from the property.

8. [NAME] [RESPONDENT] sent emails on 31 July and 1 August 2019 which were not copied to the other side. In those emails [NAME] [RESPONDENT] complained about

50 the Applicant’s [NAME] stating that he received blank statements and that [NAME] [NAME] [NAME] said that it would not be appropriate for him to comment. [NAME] [RESPONDENT] also advised that he had seen a solicitor and had went to the [NAME], and that he had been advised to seek an extension to prepare the defence [NAME] which he said would take him 4 to 5 months.

9. On 2 August 2019 another Procedural Judge advised [NAME] [RESPONDENT] to make his application on the correct form and to copy it to the other side.

10. On 5 August 2019 [NAME] [RESPONDENT] sent another email complaining about the Tribunal’s intended inspection of the property. On 15 [NAME] [RESPONDENT] copied the Tribunal into an email addressed to the Applicant where he told the Applicant the he required a speech to text operator at the hearing.

11. [NAME] [RESPONDENT] suppled an email from a [RESPONDENT] of [COMPANY] to him which stated that

“I would add at the bottom that you are deaf and although you are able to communicate on a 1:1 basis communicating with more than one person and in a room full of people, causes you great difficulty and you would like to know what measures are being put in place to support you. This is important as you need to be fully involved and able to participate in these proceedings. If you do require a speech to text operator tell them this stating you need to be 100 per cent sure you are getting all the information/questions directed to you”.

12. On 15 August 2019 [NAME] [RESPONDENT] completed an application for extension of time on the prescribed form. He set ut five grounds for the Application:

• He was awaiting medical evidence. [NAME] [RESPONDENT] said he had cancelled an operation at the end of August in order to prepare for the [NAME].

• He was applying for [NAME], the papers would be lodged on 2 September with the assistance of [NAME].

• He had to collate witnesses statements from a number of people. Two witnesses told him that they would have details ready for him by the beginning of September.

• He finds it difficult to submit his own legal submissions and the fact that he was on medication which caused memory loss.

• He was trying to collate police evidence”.

51 13. Judge Tildesley granted [NAME]’s request for an extension in part by extending the time for submission of his [NAME] from 15 August 2019 to 1 October 2019 (an extension of 6 weeks). [NAME] [RESPONDENT] was reminded that the hearing date of 24 October 2019 remained.

14. On 16 August 2019 [NAME] [RESPONDENT] expressed his displeasure with the decision. [NAME] [RESPONDENT] said he was a respected author and was a lecturer until he contracted a bad [NAME] of meningitis and became disabled. Further he said he was a professional investigator who still investigated unsolved murders. Finally he asserted that would not be treated with impunity by anyone regardless of rank or social standing and he would not have his integrity challenged.

15. [NAME] [RESPONDENT] provided a scanned copy of a letter from a Dr [RESPONDENT] of [NAME]. [NAME] [RESPONDENT] said that he wanted to place some medical evidence with the application for extension but unfortunately Dr [NAME] was in hospital awaiting an operation and the surgery manager was away on holiday. [NAME] [RESPONDENT] said he visited the surgery and one of the doctors overheard a discussion he was having with a member of staff. The Doctor invited him and provided a letter which said that

“[NAME] [RESPONDENT] is profoundly deaf and has issues with his memory subsequent to meningitis. He is therefore unable to represent himself at his forthcoming Tribunal and will need legal representation for this. These issues are long term, so there is no possibility of [NAME] [RESPONDENT] being able to carry out his own defence at any time in the future”.

16. [NAME] [RESPONDENT] asserted that he would not attend any Tribunal without legal representation that was his right and the law and that is how matters stood. [NAME] [RESPONDENT] stated that he felt that the [NAME] was cut and dried from the day the Applicant applied to have the [NAME] fast tracked.

17. Judge Tildesley sought the comments of the Applicant regarding a further extension of time for [NAME] [RESPONDENT] to prepare his [NAME]. The Applicant submitted that the extension to 1 October given to [NAME] [RESPONDENT] provided a reasonable length of time for legal assistance if this was considered necessary. The Applicant was also of the view that the hearing date of 24 October 2019 provided an appropriate timescale for [NAME] [RESPONDENT].

18. On 28 August 2019 the Tribunal wrote to [NAME] [RESPONDENT] advising that the alleged breaches of covenant did not require the Tribunal to carry out an inspection inside the flat. Further the Tribunal stated

“With regard to your application for extension of time before the hearing to allow you to obtain legal representation provided you can demonstrate that you have applied for pro bono representation, that this is being considered but that a decision has not been reached by 1 October 2019 you may resubmit an application for an adjournment of the hearing. Bearing in mind the nature of the allegations the [NAME] is entitled to have the matter heard by the Tribunal without undue delay and this will have to be weighed in the balance when the Tribunal considers any application to postpone the hearing. The Tribunal hopes and expects you to progress the application for representation with all possible expedition”.

19. On 5 September 2019 [NAME] informed the Tribunal that [NAME] [RESPONDENT] had visited the office and that [NAME] was acting as referrer in an application for public funding for the Tribunal hearing. Further the completed application would be posted today to the [COMPANY] together with copies of accompanying documents.

20. On 10 September 2019 [NAME] [RESPONDENT] supplied the Tribunal with an email from the [NAME]. [NAME] [RESPONDENT] also confirmed that he had collated several witness statements and have several years of evidence to supply which needs placing in order for the Tribunal with the aid of legal representation.

21. The email from the Advocate Team stated they would check whether the application met their criteria. The Team advised that the checks could take up to three weeks when the Advocate Team would inform [NAME] [RESPONDENT] whether they required further information, or whether his application was ineligible or whether they would look for a barrister for him. The Advocate Team also said that they could not help everyone, and that [NAME] [RESPONDENT] was responsible for the running of his [NAME] and that he must comply with the deadlines of the Tribunal.

22. On 15 September 2019 [NAME] [RESPONDENT] informed the Tribunal that he had received “a mail” from [COMPANY] about one of his operations and that the hospital wanted him to have an operation in October. [NAME] [RESPONDENT] again repeated his assertion that the Applicant’s accusations were false. [NAME] [RESPONDENT] reiterated his request to grant him an extension so that he can have his operation and gather his papers together and place them before the [NAME].

23. On 15 September 2019 [NAME] [RESPONDENT] supplied a letter from Surrey Police from a [NAME] [RESPONDENT] which indicated that he would be rescinding the record under community resolution that [NAME] [RESPONDENT] was the offender in the matter regarding the incident with [NAME] [NAME]. The scanned copy of the letter provided to the Tribunal was not on headed paper and there was no indication of the position of [NAME] within Surrey Police.

24. On 17 September 2019 the Tribunal advised [NAME] [RESPONDENT] that it was seeking the views of the Applicant about his request for further time and that the Tribunal would give a response by 23 September 2019. The Tribunal advised that in the meantime the hearing date of 24 October 2019 remained

53 25. On 17 September 2019 [NAME] [RESPONDENT] responded by stating that he did not understand the last letter referring his request to the Applicant. [NAME] [RESPONDENT] repeated that

“In plain English no extension means no hearing. By law he asserted that he must be legally represented to appear before any hearing as he could not represent himself on medical grounds”.

26. On 20 September 2019 [NAME] [RESPONDENT] stated that he had heard nothing back regarding his request for speech to screen facilities at the Tribunal hearing. [NAME] [RESPONDENT] said he would require transport if the hearing was outside Guildford.

27. On 23 September 2019 Judge Tildesley wrote the following letter to [NAME] [RESPONDENT]

“Judge Tildesley is not prepared to grant an adjournment of the hearing on 24 October 2019.

You were advised in the letter of 28 August 2019 that if a decision had not been reached by the [NAME] on representation by 1 October 2019, you may re-submit an application for an adjournment of the hearing on 24 October 2019.

Judge Tildesley notes the email of 10 September 2019 from "[NAME]" which indicates that they will provide you with an answer within 3 weeks if you meet their criteria for help. Judge Tildesley wishes to see that email first before he will consider any further request for an adjournment.

Judge Tildesley also notes that "[NAME] " advises you that you are always responsible for the running of your [NAME] and you must comply with any deadlines.

In this regard Judge Tildesley grants a further extension for submission of your [NAME] (4 of directions dated 15 August 2019) until 3 October 2019. Judge Tildesley notes that you have had since 8 July 2019 to prepare your [NAME].

Judge Tildesley notes your request for the hearing to be held in Guildford. He will make enquiries as to whether it is possible to transfer the [NAME] from Staines to Guildford.

Judge Tildesley advises that he will not answer any further emails from you until you provide the answer from The [NAME].

Judge Tildesley confirms that the Tribunal is working to the hearing date of 24 October 2019”.

54 28. [NAME] [NAME] first response to the letter was to remind the Tribunal that he could not attend by law any court hearing civil or criminal without legal representation.

29. [NAME] [RESPONDENT] also supplied a response from the Advocate Team at the [NAME] dated 13 September 2019 stating that they were sorry that he was having difficulties with his health and with the Tribunal process and that if he required further time to provide the requested information that they must receive everything by no later than three weeks before any hearing date. The Advocate team reminded [NAME] [RESPONDENT] that they required certain information which included all court or tribunal papers, documents relating to the ownership of the Flat and also a clear written summary of his [NAME].

30. [NAME] [RESPONDENT] then sent a complaint stating that Judge Tildesley had a strategy in which he had no intention of granting an extension and that Judge Tildesley was discriminating against him on the grounds of disability. [NAME] [RESPONDENT] asserted that he did not want Judge Tildesley dealing with his [NAME] and would refuse to go before any Tribunal that he was associated with. [NAME] [RESPONDENT] stated that his health was of the upmost importance to him and he would not have it either ignored or placed in jeopardy by someone who believed he was above the law and who showed total lack of apathy towards others and in the process took far too much for granted and knew little of justice and fair play due to ignorance.

CONSIDERATION

31. The Tribunal is governed by the Overriding Objective to deal with cases fairly and justly.

32. Dealing with a [NAME] fairly and justly includes

(a)dealing with the [NAME] in ways which are proportionate to the importance of the [NAME], the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal; (b)avoiding unnecessary formality and seeking flexibility in the proceedings; (c)ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d)using any special expertise of the Tribunal effectively; and (e)avoiding delay, so far as compatible with proper consideration of the issues.

33. The parties must help the Tribunal to further the overriding objective and to co-operate with the Tribunal generally.

34. The overriding objective requires the Tribunal to be fair to both parties. The Applicant in this [NAME] is a non-profit making [NAME] association. The Applicant requested the [NAME] to be fast tracked because of [NAME] [RESPONDENT]’ behaviour towards other residents and members of

55 staff. [NAME] [RESPONDENT], on the other hand, vigorously denies the allegations and is profoundly deaf and suffers from memory loss.

35. The Tribunal has sought to balance these competing interests by fixing the hearing date some five months after the date of application on 28 May 2019 and giving [NAME] [RESPONDENT] almost three months in which to prepare his [NAME] from 8 July 2019 when the papers were sent to him. Contrary to [NAME] [RESPONDENT]’ assertions, the [NAME] has not been fast tracked and he has been granted an additional six weeks to prepare his [NAME]. Also the Tribunal has formed no view at this stage on the merits of the [NAME].

36. The [NAME] concerns allegations that [NAME] [RESPONDENT] has broken the covenants under his lease. The Tribunal’s jurisdiction is [COMPANY] to deciding whether a breach has occurred or not. As a general rule such proceedings do not involve difficult questions of law and are decided on the facts. If the Tribunal finds that a breach has occurred, the landlord would then be required to take further proceedings before the Court if it wished to forfeit the lease.

37. There is no requirement for parties to be represented by a solicitor or counsel before the Tribunal. The reason being is that the Tribunal is intended to be less formal than a court to ensure that all parties have access to justice. The Tribunal is experienced in dealing with litigants in person.

38. There is a duty on the Tribunal to ensure so far as is practicable that the parties are able to participate in the hearing. [NAME] [RESPONDENT] has informed the Tribunal of his requirement to have speech to screen facilities. The Tribunal is in the process of organising an operator for the hearing on 24 October 2019. The Tribunal has been unable to list the hearing at [NAME] [RESPONDENT]’ local court at Guildford but has arranged the hearing at Staines. If it is at Staines, [NAME] [RESPONDENT] would have to make his own arrangements to travel there. It is not possible to hold the hearing outside court premises because of security considerations. Judge Tildesley has already indicated that he would make another request for the hearing to be listed at Guildford.

39. [NAME] [RESPONDENT] asserts that he has right to be legally represented and has produced a letter from a Dr [NAME] to support his claim. As explained above there is no requirement for parties to be represented by a solicitor or counsel before the Tribunal. The principal reason for this is that it is the Court not the Tribunal which makes binding orders that may affect a person’s right to live in his home. The role of the Tribunal is effectively to decide a question of fact which may be relied on in subsequent Court proceedings.

40. There is no indication in the papers that [NAME] [RESPONDENT] lacks capacity to conduct the proceedings. [NAME] [RESPONDENT] is explicit in his correspondence with the Tribunal that he understands the issues and what he is required to do to present his [NAME] to the Tribunal.

56

41. [NAME] [RESPONDENT] can instruct a solicitor or barrister if he considers that he ought to be represented at the hearing and has the means to do so. The Tribunal has also given him time to seek pro-bono representation. The Tribunal notes that [NAME] [RESPONDENT] said that he saw a solicitor on 1 August 2019 about the [NAME]. The Tribunal observes that the [NAME] sent his application for assistance to the [NAME] on 5 September 2019. The Tribunal said that it would consider a further application for an adjournment if the [NAME] was still considering whether to represent [NAME] [RESPONDENT] at the hearing and no decision had yet been made.

42. Judge Tildesley in his letter of 23 September 2019 said he was not prepared to consider an adjournment until he saw the email from the [NAME] about whether his application had been accepted or not.

43. [NAME] [RESPONDENT] subsequently supplied an email dated 13 September 2019 which said that [NAME] [RESPONDENT] had not provided the [NAME] with the necessary information in order to process his application. The Tribunal observes that some of the information requested was within the possession of [NAME] [RESPONDENT] such as the Tribunal Orders and the lease. [NAME] [RESPONDENT] has given no explanation for not providing the requested information. The Tribunal notes that the [NAME] emphasised that [NAME] [RESPONDENT] is responsible for the conduct of his [NAME] and that he must observe the deadlines imposed by the Tribunal.

44. [NAME] [RESPONDENT] stated that he has cancelled his hospital operations because of the Tribunal, and that he has an operation planned for October. [NAME] [RESPONDENT] has supplied no evidence of the letters from the hospital and of the various operations. The Tribunal has not required him to cancel operations because of the pending hearing.

45. [NAME] [RESPONDENT] indicated in his application of 14 August 2019 that his two witnesses would have their statements ready for him at the beginning of the September. [NAME] [RESPONDENT] has supplied a copy of a letter from [RESPONDENT] which purportedly deals with the evidence from the Police. The Tribunal concludes that it appears that [NAME] [RESPONDENT] has collated the necessary evidence to support his [NAME], and all that is required from him is a clear summary of his [NAME].

46. [NAME] [RESPONDENT] is obliged to co-operate with the Tribunal in furthering the overall objective. [NAME] [RESPONDENT] has persistently failed to copy his correspondence to the other side despite reminders from the Tribunal. [NAME] [RESPONDENT] is insistent that he will not recognise the Tribunal’s authority to manage the [NAME] in the interests of both parties. [NAME] [RESPONDENT] appears to drip feed information to the Tribunal as and when it suits his [NAME].

47. The Tribunal has invested considerable resource in managing this [NAME], and in endeavouring to respond to each of [NAME] [RESPONDENT] requests.

57 48. [NAME] [RESPONDENT] has indicated that he would not attend a Tribunal where Judge Tildesley is involved. [NAME] [RESPONDENT] has put forward no grounds substantiating an allegation of bias on Judge Tildesley’s part. The Tribunal on the 24 October would comprise three members including Judge Tildesley.

Decision

49. The Tribunal has concluded that in furtherance of the overriding objective that the hearing will go ahead on 24 October 2019 at 10.30am at [ADDRESS] [POSTCODE]. The Tribunal will use its best endeavors to secure a court room at Guildford and will inform the parties if the venue is changed.

50. The Tribunal decides it is not possible manage the [NAME] without seeing the parties in person and hearing from both of them

51. If [NAME] [RESPONDENT] chooses not to attend the hearing the Tribunal would decide if there is good reason for his non-attendance. If there is good reason the [NAME] would be adjourned. If there is no good reason the Tribunal would proceed in the absence of [NAME] [RESPONDENT].

52. If [NAME] [RESPONDENT] attends he is entitled to make application for an adjournment but if not granted the Tribunal would proceed to hear the [NAME].

53. If [NAME] [RESPONDENT] attends and has complied with the directions below the Tribunal would hear the [NAME].

54. The same considerations apply to the Applicant if it chooses not to attend or attends and requests an adjournment.

Directions

55. By 7 October 2019 [NAME] [RESPONDENT] shall supply the Applicant with a

• A statement in response to the Applicant’s [NAME] setting out in full the grounds for opposing the application • Any signed witness statements of fact • Any legal submissions • Any other documents upon which [NAME] [RESPONDENT] wishes to rely at the hearing, not already provided by the Applicant

56. By 14 October 2019 the Applicant shall provide four copies of its bundle to the Tribunal (in a file, with index and page numbers) and send one copy to the Applicant

57. The bundle shall contain copies of:

• The application

58 • These and any subsequent directions • The Applicant’s statement of [NAME] • The Respondent’s statement of [NAME] • A copy of the lease of the property or its counterpart • Up to date official copies of the entries on the registers of both the freehold and leasehold titles • All relevant correspondence between the parties • Any signed witness statements of fact • Any legal submissions • Any other documents upon which the parties wish to rely on at the hearing

58. Any application in respect of reimbursement of fees may be dealt with at the hearing (if any).

59. If a party wishes to make application in respect of the [NAME] and or the hearing the application must be on the prescribed form. The Tribunal will not respond to general correspondence by email.