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Yemshaw v Hounslow London Borough Council
[2011] UKSC 3, January 26, 2011
Lords Hope, Roger, Walker, Lady Hale and Lord Brown
The Supreme Court has held that “domestic violence” in Housing Act 1996, s.177(1), is not limited to violence involving physical contact but also includes threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.
Homelessness
Part 7, Housing Act 1996, governs the provision by local housing authorities of assistance to homeless persons. A person is homeless, inter alia, if he has no accommodation which he has a legal entitlement to occupy: s.175(1). A person is not treated as having accommodation, however, unless it would be reasonable for him to continue to occupy it: s.175(3).
Section 177(1) provides 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 him, or against a person who normally resides with him as a member of his family, or any other person who might reasonably be expected to reside with him. Violence is defined as violence from another person, or threats of violence from another person which are likely to be carried out; violence is “domestic violence” if it is from a person who is associated with the victim: s.177(1A).
Section 178 defines the circumstances in which a person is associated with another person to include, inter alia, where they are, or have been, married or civil partners; they live or have lived in the same household; they are relatives; or they are parents of the same child.
Section 177(3) gives the Secretary of State a power to specify other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation.
The Court of Appeal held in Danesh v Kensington & Chelsea RLBC [2006] EWCA Civ 1404; [2007] H.L.R. 17, CA, that “violence” in s.177, 1996 Act, meant violence involving some physical contact and did not include threats of violence or acts or gestures which lead a person to fear physical violence.
Facts
In August 2008, the appellant left her husband taking her young children with her. She applied to the respondent authority as homeless under Pt 7, Housing Act 1996 and told them that she had fled her husband because she was frightened of him. She claimed that his behaviour towards her amounted to emotional and psychological abuse. She did not, however, allege that she had suffered any physical violence.
The authority decided that the appellant was not homeless because it was reasonable for her to continue to occupy her matrimonial home. They said that the husband’s behaviour was such that, if she returned to the property, it was not probable that he would subject her to physical violence or threats of such violence.
The appellant requested a review of the decision, contending that it was not reasonable for her to continue to occupy the property with her husband because this would lead to domestic violence against her. She argued that “domestic violence” in s.177, 1996 Act, included emotional or psychological abuse. The authority upheld their decision, considering that the appellant had left the matrimonial home because she felt that her husband did not love her any more and she had suspected that he was seeing another woman. The appellant appealed to the county court under.
The county court judge dismissed the appeal on the ground that he was bound by Danesh.
Court of Appeal
The appellant appealed to the Court of Appeal. The Secretary of State intervened and made written submissions arguing that the court ought not to follow Danesh because the Homelessness Code of Guidance for Local Authorities had been revised since that decision and suggested that violence included psychological or emotional abuse (Homelessness Code of Guidance for Local Authorities, para.8.21).
The Court of Appeal dismissed her appeal ([2010] EWCA Civ 1543; [2010] H.L.R. 23, CA), holding that: (i) Danesh had not been decided per incuriam; (ii) the meaning of domestic violence had not changed since that decision; and, (iii) the Secretary of State and the appellant overstated the significance of the Code of Guidance.
Supreme Court
The appellant successfully appealed to the Supreme Court. Lady Hale gave the leading judgment, with which Lord Hope and Lord Walker agreed. Lord Rodger also agreed with Lady Hale, and added further reasons of his own.
Although “physical violence” is one natural meaning of the word “violence”, it is not the only natural meaning [19]. By the time that the 1996 Act was enacted, the meaning of “domestic violence” had moved on from a narrow focus upon battered wives and physical contact [24].
Even if, however, its meaning had not broadened by the time of the 1996 Act, there was no doubt that its meaning had now been expanded. “Violence” is not a term of art but is capable of bearing several meanings and applying to different types of behaviour, which can change and develop over time [27]. The purpose of the legislative scheme would be achieved by adopting an adapted form of the definition of “domestic violence” laid down by Sir Mark Potter, President of the Family Division in Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, so 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.”
Adopting a broader construction to that used in Danesh did not render the references to “threats of violence” in ss.177(1) redundant. Some forms of conduct which put a person in fear of violence would not necessarily be described as threats, such as silent phone calls [31]. Furthermore, other sorts of abusive behaviour, such as locking a person within the home or depriving a person of food were not uncommon examples of what is now recognised as domestic violence [32].
Lord Brown expressed doubt as to whether ss.177 was intended to extend beyond the limits of physical violence but decided not to dissent from the majority [48], [60].
As the housing officers and the review panel had applied Danesh, the case was remitted to the local housing authority to make a fresh decision [37]
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