Local government – Domestic violence – Homelessness – Housing provision

Yemshaw v Hounslow London Borough Council: SC (Lords Hope (deputy president), Rodger, Walker, Brown, Lady Hale): 26 January 2011

The appellant (Y) appealed against a decision ([2009] EWCA Civ 1543, [2010] HLR 23) that the respondent local authority had been entitled to find that she was not homeless.

Y had left her husband. She applied to the local authority for housing assistance, claiming that although her husband had not physically assaulted her or threatened to assault her she was scared that he would. Under section 177(1) of the Housing Act 1996 a local authority was obliged to rehouse a person where it was not reasonable for that person to continue to occupy accommodation if it would lead to domestic violence. A person at risk of such violence would be automatically homeless. The local authority decided that in the circumstances it was still reasonable for Y to occupy the matrimonial home. A review of that decision was unsuccessful as the panel considered the probability of domestic violence to be low. Y appealed. The county court and the Court of Appeal followed the decision in Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404, [2007] 1 WLR 69, and concluded that the term ‘violence’ in section 177(1) required some sort of physical contact. The issue in the instant appeal was whether the word ‘violence’ in section 177(1) included other forms of violent conduct.

Held: Although ‘physical violence’ was a natural meaning of the word ‘violence’, it was not the only natural meaning. The word ‘violence’ was not a term of art; it was capable of bearing several meanings and applied to many different types of behaviour which could change and develop over time (see paragraphs 19, 24 of judgment). By the time of the 1996 act, the understanding of domestic violence had developed from a narrow focus on battered wives and physical contact. However, there was no comprehensive definition in the 1996 act of the kind of conduct involved and the essential question was whether an updated meaning was consistent with the statutory purpose, Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 HL applied. In the instant case, that purpose was to ensure that a person was not obliged to remain living in a home where she was at risk of harm. A further purpose was that a victim of domestic violence had a real choice between remaining in her home and seeking protection from the law or leaving to begin a new life elsewhere. The purpose of the legislation would be achieved if the term ‘domestic violence’ was interpreted in the same sense as used in Practice Direction (Fam Div: Residence and Contact Orders: Domestic Violence and Harm) (No.2) [2009] 1 W.L.R. 251 to include ‘... physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm’ (paragraphs 24, 27). The advantage of that definition was that it dealt separately with actual physical violence, putting a person in fear of violence, and other types of harmful behaviour. It had long been recognised that it was dangerous to ignore what might appear to be relatively trivial forms of physical violence. In the domestic context, it was common for assaults to escalate from what at first seemed trivial. The introduction of ‘other violence’ into section 177(1) by section 10 of the Homelessness Act 2002 could not have been intended to cut down the meaning the statute already had (paragraphs 31-35). The housing officers and review panel had adopted a narrow view of domestic violence and the case would be remitted to the local housing authority to be decided again, Danesh overruled (paragraphs 36-37 of judgment).

Appeal allowed.

Nathalie Lieven QC, Martin Hodgson (instructed by Scully and Sowerbutts) for the appellant; Richard Drabble QC, Matthew Feldman (instructed by in-house solicitor) for the respondent; James Maurici (instructed by Treasury Solicitor) for the first intervener; Stephen Knafler QC, Neil Jeffs (instructed by Sternberg Reed) for the second intervener.