Supreme Court domestic violence ruling widens council homelessness duties

Local authorities look set to have to provide housing to a wider pool of people after the Supreme Court unanimously held this week that “domestic violence” under section 177(1) of the Housing Act 1996 is not limited to physical contact but can include other forms of violent conduct.

In the test case of Yemshaw v London Borough of Hounslow [2011] UKSC 3, the appellant had left her home with her two children. She complained to housing officers about her husband’s behaviour, which included shouting in front of the children. She said she was scared that he might hit her if she confronted him.

The housing officers took the view that she was not homeless for the purposes of the 1996 Act because the husband had not actually hit her or threatened to hit her.

A review panel decided that the root cause of her homelessness was not that she had left the family home after a domestic incident. The probability of domestic violence was low, they added, concluding that it was reasonable for Ms Yemshaw to continue in the matrimonial home.

Hounslow accepted the decisions of the housing officers and the review panel that she was not homeless within the meaning of the Act. This approach was backed by the courts until this week’s Supreme Court judgment.

The effect of s. 177(1) of the 1996 Act – known as a ‘pass-porting’ provision – is that a person who is at risk of violence to which it applies is automatically homeless, however reasonable it might otherwise be for her to stay in the accommodation. Issues such as local housing conditions or shortages are not relevant, and the individual cannot be seen as intentionally homeless.

Giving the lead ruling, Lady Hale said that 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.

The judge said she did not accept that “physical violence” was the only natural meaning of the word “violence”.

Lady Hale suggested that by the time of the 1996 Act, both international and governmental understanding of the term “domestic violence” had developed beyond physical contact. “But if I am wrong about that, there is no doubt that it has moved on now.”

She added that the essential question was whether an updated meaning was consistent with the statutory purpose. “In this case the purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm,” the judge explained. “A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere.”

Lady Hale said the purpose of the legislation would be achieved if the term "domestic violence" were interpreted in the same sense in which it is used by the President of the Family Division, in his Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, para 2, adapted to the forward-looking context of sections 177(1) and 198(2) of the Housing Act 1996: “’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 Rodger added that he could see no reason why Parliament would have intended the position to be any different where someone is subjected to deliberate conduct, or threats of deliberate conduct, that may cause them psychological – as opposed to physical – harm. “To conclude otherwise would be to play down the serious nature of psychological harm,” he said.

The case will now go back to the local authority to be decided again.