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Background law

The Housing Act 1996, Pt 7 deals with the duties of local housing authorities towards the homeless. A person does not have to be sleeping rough (often referred to as “street homeless”) in order to be a homeless person. Parliament has recognised that there are some situations in which, although a person has a roof over her head, her living conditions are so intolerable that she should not be expected to remain; thus, by s 175(3) of the 1996 Act, a person is homeless if, it is no longer “reasonable” for her to continue to occupy it.

The 1996 Act goes on (s 177) to prescribe the conditions in which it will not be regarded as reasonable for a person to continue to occupy accommodation; this includes if it is probable that her continued occupation will lead to “domestic violence or other violence” against her.

In 2006, the Court of Appeal held, in Danesh v Kensington & Chelsea RLBC [2006] EWCA Civ 1404; [2007] HLR 14 held that “violence” in s 177 of the 1996 Act, was confined to physical assaults and did not include threats or other behaviour which put someone in fear of physical violence.

Background facts

Mrs Yemshaw was married with two children. She applied to Hounslow as homeless and claimed that she had been forced to leave the matrimonial home owing to emotional, psychological and financial abuse by her husband. Importantly, however, she accepted that he had never physically assaulted her.

On the basis of Danesh, the authority found that there was no probability of actual violence from her husband and, hence, that she was not homeless as it was still reasonable for her to occupy the matrimonial home. Her appeal to the county court (see the Housing Act 1996, s 204) was dismissed, as was an appeal to the Court of Appeal.

Issues on appeal

The issue was a narrow one – did “violence” in s 177 mean (as the Court of Appeal had held in Danesh and in Yemshaw) physical violence only or could it be satisfied by other actions short of physical violence? (at [1]) To put it another way, was Danesh rightly decided? It was common ground (at [36]) that, if the wider definition of “violence” was correct, then the case would have to be remitted for reconsideration by the authority.

Judgment

The leading judgment was given by Baroness Hale, with whom Lords Hope and Walker agreed. After tracing the history of modern homelessness law (starting with the Housing (Homeless Persons) Act 1977 and going through to the 1996 Act), Lady Hale turned to consider the dictionary definition of “violence”. She noted (at [19]) that, whilst physical violence was undoubtedly an example of violence, it was not the only possible example. The Shorter Oxford English Dictionary had, since the revised 3rd edn (1973) referred additionally to, e.g. fury and other emotions which fell short of actual violence

The early 1990s had seen a clear recognition that domestic violence could occur through mental repression, as well as physical assault. The research of the interveners (the Secretary of State and the Women’s Aid Federation), had found various international and domestic statements to this effect, including UN documents, Home Affairs Committee reports and a Report from the Law Commission (at [20]-[21]), all of which stressed that violence against women was not limited to physical assault. This trend had continued through to the modern day (at [24]).

Even if, at one time, a more limited understanding of the word “violence” had been correct, that could no longer stand (at [28]). Parliament could not fix the meaning of “violence” for all time and an updated (i.e. broader) meaning clearly served the wider statutory purpose: Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 applied (at [27]).

Housing lawyers should interpret “domestic violence” in the same way that family lawyers did, by reference to the  Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251 (at [28]). Thus, “domestic violence”:

“ . . . includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm . . . ”

Lord Roger agreed, and added a few words of his own. It would downplay the serious nature of psychological harm to exclude it from the scope of “violence” in s 177 (at [46]).

Lord Brown had doubts about the approach of both Lady Hale and Lord Roger; the legislative history did appear to suggest that Parliament had intended “violence” to be confined to physical violence (at [48]-[53]). It was not until 2006, when the Secretary of State published a revised code of guidance for local housing authorities, that he first expressly endorsed a wider approach to the meaning of “violence” (at [55]).

Whilst Lord Brown accepted that there was a policy imperative in re-housing victims of physical violence in order to protect their physical safety; it was, however, more difficult to identify a similar urgency in cases that involved behaviour short of physical violence (at [57]). His Lordship was not, however, minded to go as far as to dissent (at [60]).

Comment

The expanded approach to “violence” has been with us in a variety of fields for some years (see, e.g. R v Ireland [1998] AC 147, construing “bodily harm” in the Offences Against the Person Act 1861 as covering psychological harm) and the approach taken in the judgment simply brings housing law in line with other areas of law and policy, and one might be forgiven for thinking that the media clamour after the decision was somewhat disproportionate (see below links for information).  The judgment is to be welcomed for bringing clarity to this corner of the law whilst simultaneously advancing the policy aims of the 1996 Act.

See also, coverage of the case in the Daily Mail, on Charon QC’s Blog and at the UK Human Rights Blog.