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Is it limited to physical contact or does it include other forms of violent conduct? Ratio |
The Court of Appeal, as it was bound to do by the earlier case of Danesh v Kensington and Chelsea Royal London Borough Council [2006] EWCA Civ 1404, [2007] 1 WLR 69, held that it was limited to physical contact: [2009] EWCA Civ 1543. PRE |
The appellant contends that it is not. ARG |
As the appellant is a woman, and the majority of victims of all forms of domestic violence are women, I shall refer to the victim as she throughout. Ratio |
But of course I realise that men can be victims too. Ratio |
The evolution of the statutory scheme STA |
The modern scheme of local housing authorities powers and duties towards homeless people dates back to the Housing (Homeless Persons) Act 1977. STA |
That Act provided that a person was homeless if there was no accommodation which she (together with other members of her family) was entitled to occupy. STA |
Even if there was such accommodation, a person was also homeless if it is probable that occupation of it will lead to violence from some other person residing in it or to threats of violence from some other person residing in it and likely to carry out the threats: 1977 Act, section 1(2)(b). STA |
That provision was repeated when the 1977 Act was consolidated with other housing legislation in the Housing Act 1985: see section 58(3)(b). STA |
Then came the case of R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484, where the House of Lords held that a person was not homeless even if it was not reasonable for her to have to continue to occupy the accommodation to which she was entitled. PRE |
In response to this, the Housing and Planning Act 1986 inserted two new subsections into section 58 of the 1985 Act. STA |
Subsection (2A) provided that A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy; but subsection (2B) permitted the local housing authority, when deciding whether it would be reasonable to continue to occupy, to have regard to the ... |
No change was made to the basic definition in section 58(3), under which a person was automatically homeless if there was a risk of violence from another person living in the accommodation which she was entitled to occupy. STA |
Neither in 1977 nor in 1985 did the subsection specify who had to be the victim of such violence: it may have been assumed that it had to be the person claiming to be homeless or it may have been assumed that it would also cover the people living with her, in particular her children. STA |
The scheme was recast in Part VII of the Housing Act 1996, although retaining its basic shape. STA |
The definition of homelessness, now contained in section 175 of the 1996 Act, remained the same as it had been in the 1985 Act as amended in 1986, but section 58(3)(b) dealing with violence and section 58(2B) dealing with local housing conditions were removed into section 177 (see para 5). STA |
The former reasonable to continue to occupy requirement in section 58(2A) is now contained in section 175(3): A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. STA |
The former section 58(3)(b) and (2B) have been translated into the new section 177, which is headed Whether it is reasonable to continue to occupy accommodation. STA |
The former section 58(2B), dealing with local housing conditions, is now contained in section 177(2), which reads as follows: In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to hous... |
Although there was some debate about it before us, the phrase used is the general circumstances in relation to housing and not the general condition of the housing stock in the area. Ratio |
This strongly suggests that regard may be had, not only to the quality of housing available locally, but also to the quantity. Ratio |
The former section 58(3)(b), dealing with the risk of violence, was recast as section 177(1) of the 1996 Act. STA |
In its original form, it read as follows: It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence against him, or against (a) a person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expecte... |
For this purpose domestic violence , in relation to a person, means violence from a person with whom he is associated, or threats of violence from such a person which are likely to be carried out. STA |
This made two changes of substance from the old law. STA |
First, it expressly encompassed violence against other members of the homeless persons household: a mother for example, could not reasonably be expected to occupy accommodation where her children were at risk of domestic violence. STA |
Second, it was no longer limited to violence from someone living in the same accommodation but covered violence from an associated person, whether or not living in the same household. STA |
Section 178 spells out the Meaning of associated person in detail, but of course it includes spouses and former spouses, cohabitants and former cohabitants, and (since 2005) civil partners and former civil partners. STA |
But these changes did not change the underlying purpose of section 177(1). Ratio |
It has variously been called a deeming or a pass-porting provision. Ratio |
The effect is, as it has been since 1977, that a person who is at risk of the violence to which it applies is automatically homeless, even though she has every right to remain in the accommodation concerned and however reasonable it might in other respects be for her to do so. Ratio |
Questions of local housing conditions or shortages do not come into it. Ratio |
There was, however, another important consequence of the particular drafting technique employed in section 177. Ratio |
This was new to the 1996 Act and was not referred to in the argument before us. Ratio |
As it is automatically not reasonable for a person to continue to occupy accommodation where she is at risk of violence, she cannot be treated as intentionally homeless if she leaves. Ratio |
Section 191 defines when a person becomes homeless intentionally as follows: (1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to cont... |
This result follows a recommendation of the Home Affairs Committee in their 1993 Report on Domestic Violence, to which I shall return in paragraph 21. STA |
Section 177(1) was amended, and a new section 177(1A) introduced, by the Homelessness Act 2002. STA |
These now read as follows: (1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him, or against (a) a person who normally resides with him as a member of his family, or (b) any other person who might reasonably be ... |
(1A) For this purpose violence means (a) violence from another person; or (b) threats of violence from another person which are likely to be carried out; and violence is domestic violence if it is from a person who is associated with the victim. STA |
Once the prospect of other violence was introduced into this pass-porting provision, it is not easy to see why the specific reference to domestic violence (together with the complex definition of associated persons in section 178) was retained, unless perhaps it was thought that domestic violence had a special meaning.... |
But this is quite hard to reconcile with the phrase violence is domestic violence. Ratio |
I return to this question in paragraph 31. Ratio |
One reason may be that the phrase domestic violence has been in the scheme throughout, even though it was not originally used in the definition of homelessness in section 1 of the 1977 Act (see para 2 above). Ratio |
Section 5 of the 1977 Act dealt with responsibility for housing homeless people as between different local housing authorities. STA |
The authority first approached could in effect transfer responsibility to another housing authority if the applicant, or other members of her household, had no local connection with their area, but did have a local connection with another area, and neither the person who so applied nor any person who might reasonably b... |
The risk of domestic violence or threats of domestic violence was defined in terms of a risk from any person with whom, but for the risk of violence, he might reasonably be expected to reside or from any person with whom he formerly resided: see section 5(11). STA |
These provisions were consolidated in the 1985 Act as section 67(2)(c) and (3). STA |
The same principles were carried through into section 198(2)(c) and (3) of the Housing Act 1996 in virtually identical form, save that the risk had now to come from a person with whom he is associated. STA |
With the introduction of other violence into section 177(1) by the 2002 Act, changes were also made to section 198. STA |
Section 198(2) remains in its original form, but a new section 198(2A) has been introduced and section 198(3) replaced. STA |
These now read as follows: (2A) But the conditions for referral mentioned in subsection (2) are not met if (a) the applicant or any person who might reasonably be expected to reside with him has suffered violence (other than domestic violence) in the district of the other authority; and (b) it is probable that the retu... |
(3) For the purposes of subsections (2) and (2A) violence means - (a) violence from another person; or (b) threats of violence from another person which are likely to be carried out; and violence is domestic violence if it is from a person who is associated with the victim. STA |
As with section 177, it is not easy to see why the distinction between domestic and other violence was retained, as the consequence is the same, unless there was thought to be some difference between them. STA |
There is one further provision in the homelessness scheme to which I must refer. STA |
The 1996 Act introduced a new provision in section 177(3): (3) The Secretary of State may by order specify (a) other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation. STA |
There is no equivalent power in section 198. STA |
Thus, in theory, the Secretary of State could expand the categories of people who are automatically homeless by reference to some other risk, but they could then be sent back to a district where they would face exactly that same risk. STA |
Danesh v Kensington and Chelsea Royal London Borough Council [2006] EWCA Civ 1404, [2007] 1 WLR 69, concerned the meaning of non-domestic violence in section 198. PRE |
The applicant and his family were asylum seekers who had been living for just over a year in Swansea when they were granted indefinite leave to remain and thus became eligible under Part VII of the 1996 Act. PRE |
They applied to Kensington which referred them to Swansea. PRE |
They complained of trouble from local youths in Swansea, shouting abuse and making insulting gestures, racist abuse on a bus, and two specific incidents of assault outside a community centre and in the city centre. PRE |
The local authority took the view that the two assaults were random incidents of crime which might happen anywhere to anyone and were not part of a course of harassment against the applicant or his family. PRE |
The verbal abuse did not amount to a threat of violence and accordingly there was no reason to believe that it was more likely than not that violence would result if they returned to Swansea. PRE |
The Court of Appeal held that in this context, violence involved some sort of physical contact: Neuberger LJ accepted the councils contention that In section 198 violence means physical violence, and the word violence on its own does not include threats of violence or acts or gestures, which lead someone to fear physic... |
He went on to give five reasons for this, to which I shall return. PRE |
Finally, it is worth noting another innovation made by the 1996 Act. Ratio |
Sections 145 and 149 amended the 1985 Act and the Housing Act 1988 by introducing for secure and assured tenancies a new ground for obtaining possession of a dwelling let to a married or cohabiting couple by, respectively, a local authority on a secure tenancy and a registered social landlord or charitable housing trus... |
This was in response to a recommendation of a Department of the Environment Homelessness Policy Division Working Party Report on Relationship Breakdown and Secure Local Authority Tenants (December 1993). Ratio |
The facts of this case FAC |
The appellant is a married woman with two young children, a girl who is now aged eight and a boy who is now aged two. FAC |
They were aged respectively six and eight months in August 2008 when she left the matrimonial home in which she lived with her husband, taking the children with her, and (having nowhere else to go) sought the help of the local housing authority. FAC |
The matrimonial home was rented in her husbands sole name. FAC |
In her two interviews with the housing officers, she complained that her husband hates her and [she] suspects that he is seeing another woman. FAC |
[She] is scared that if she confronts him he may hit her. FAC |
[However her] husband has never actually threatened to hit her. FAC |
She went on to complain of his shouting in front of the children, so that she retreated to her bedroom with them, not treating her like a human, not giving her any money for housekeeping, being scared that he would take the children away from her and say that she was not able to cope with them, and that he would hit he... |
The officers decided that she was not homeless as her husband had never actually hit her or threatened to do so. FAC |
She consulted solicitors who applied for a review which was unsuccessful. FAC |
The panel noted that your root cause of homelessness is not that you fled after a domestic incident, but it was your decision to leave the matrimonial home because you felt that your husband did not love you any more and was not close to you, in addition to suspecting that he was seeing another woman. RLC |
They believed that the probability of domestic violence is low and found her fear that her husband would take the children away from her to be contradictory, as she had also said that he took no interest in the children. RLC |
Hence they concluded that it was reasonable for her to continue to occupy the matrimonial home while taking action to secure a transfer under the Family Law Act 1996 or alternatively seeking accommodation in the private sector. RLC |
Mr Richard Drabble QC, who appears for the local authority, accepts that the housing officers and review panel applied the Danesh meaning when they decided that the appellant was not homeless within the meaning of the Housing Act 1996. FAC |
If this Court decides that there is a wider meaning, the case will have to be considered afresh. FAC |
There is no need, therefore, to make any further comment on the facts or upon the reasoning in the decision and review letters. FAC |
The meaning of violence Ratio |
In Danesh the first, and principal, reason given was that physical violence is the natural meaning of the word violence: para 15. Ratio |
I can readily accept that this is a natural meaning of the word. Ratio |
It is, for example, the first of the meanings given in the Shorter Oxford English Dictionary. Ratio |
But I do not accept that it is the only natural meaning of the word. Ratio |
It is common place to speak of the violence of a persons language or of a persons feelings. Ratio |
Thus the revised 3rd Edition, published in 1973, also included vehemence of personal feeling or action; great, excessive, or extreme ardour or fervour; . . . Ratio |
passion, fury; and the 4th (1993), 5th (2002) and 6th (2006) Editions all include strength or intensity of emotion; fervour, passion. Ratio |
When used as an adjective it can refer to a range of behaviours falling short of physical contact with the person: see, for example, section 8 of the Public Order Act 1986. Ratio |
The question is what it means in the 1996 Act. Ratio |
The 1996 Act was originally concerned only with domestic violence, that is violence between people who are or were connected with one another in an intimate or familial way. Ratio |
By that date, it is clear that both international and national governmental understanding of the term had developed beyond physical contact. Ratio |
The Court is grateful to the diligence of both interveners, the Secretary of State for Communities and Local Government and the Womens Aid Federation of England, for gathering so many of the references together. Ratio |
Internationally, in 1992 the United Nations Committee, which monitors the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), adopted General Recommendation 19, which included in its definition of discrimination in relation to gender based violence acts that inflict physical, mental or s... |
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