Homelessness and "other violence"

A recent Court of Appeal decision has the potential to widen the scope of persons owed duties under the homelessness legislation. Marc Samuels explains why.

In Rehana Hussain v The London Borough of Waltham Forest [2015] EWCA Civ 14, the Court of Appeal held that “other violence” (which can form the basis of a homelessness application) has a wider meaning than actual or threatened physical violence.

In the context of assessing whether it is reasonable for a person to continue to occupy premises for the purposes of the Housing Act 1996 (‘HA 1996’), s.175(3), the Court held that the scope of the term “other violence” in s.177(1) covers not only actual or threatened physical violence but “other threatening or intimidating behaviour or abuse, if it was of such seriousness that it might give rise to psychological harm”.

A possible consequence of the ruling, as submitted by the appellant council, is that the class of persons who could establish that they were homeless under Part VII HA 1996 could be noticeably widened, thereby mounting the pressure on local authorities’ already strained housing resources.

Under s.175(1) HA 1996, a person is homeless if he has no accommodation available for occupation. Such a person is not treated as having accommodation unless it is accommodation that it would be reasonable for him to continue occupying (s.175(3)). In determining whether the accommodation is reasonable, regard may be had to the general circumstances prevailing on housing within the area of the local housing authority (s.177(2)). However, s177(1) states that 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 that person or other members of their household, including family members. “Violence” is defined as violence from another person or 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 (s177(1A)).

If an applicant falls within the scope of s.177(1) HA 1996, he is deemed homeless notwithstanding other factors that might make continued occupation reasonable.

The Court of Appeal in Hussain was not persuaded that the impact of adopting a broader interpretation of “other violence” would be as great as the local authority claimed. While Lord Justice Underhill understood the Council’s concern, he did not believe that it could affect the construction of s.177(1): “The burden which adopting a broader construction of “other violence” may place on authorities is not of a nature, or inherently on a scale, that could justify the conclusion that Parliament cannot have intended it”.

His Lordship held that a restrictive construction could not be reconciled with the way in which s177(1A) was drafted, i.e. with a single concept of “violence”, with “domestic violence” as a sub-category.

The decision confirms that an applicant for homelessness can only fall within the remit of s.177(1) by demonstrating actual or threatened conduct that can properly be described as “violent”. Even in the broader sense endorsed in Yemshaw v Hounslow London Borough Council [2011] UKSC 3, to which his Lordship referred, “violence” is not equivalent to merely anti-social behaviour, however persistent or frequent, or indeed to any conduct which may cause psychological harm. The conduct must be aimed at the applicant and liable to put him in fear. It does not extend to behaviour that is merely offensive or upsetting.

The term “psychological harm”, which does not appear in the legislation and is not to be treated as a formal requirement of s.177, is illustrative because conduct cannot typically be described as “violent” (as opposed to merely anti-social) unless it is of a nature as to be liable to cause psychological harm. Lord Justice Underhill stated that this could manifest in, or overlap with, a diagnosed psychiatric injury or illness but this need not always be the case.

Local authorities will be awake to the potential consequences of this decision. Time will tell whether the impact will be as conservative as the Court anticipates. 

Marc Samuels is a barrister practising at 4-5 Gray’s Inn Square.