SECTION 177(1) of the Housing Act 1996 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) a person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him”. Whether it is reasonable for a person to continue to occupy given accommodation governs decisions, first, about whether that individual is homeless at all and, second, whether he or (more usually) she is “intentionally homeless”, in which case the statutory duties of the local authority are minimal. Section 177(1) ensures that, whether the victim has fled the home following domestic violence or remains there despite it, she is eligible for rehousing. The term “domestic violence” used here originates in the Housing (Homeless Persons) Act 1977, one of several statutes enacted following 1975's landmark Parliamentary Select Committee on Violence in Marriage.
The question for the Supreme Court in Yemshaw v. London Borough of Hounslow [2011] UKSC 3, [2011] 1 W.L.R. 433 was what “domestic violence” means here. The Act provides no comprehensive definition, but does specify (in s.177(1A)) that “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”. The concept of an “associated person” is borrowed from the Family Law Act 1996, Part IV, concerning eligibility to apply for non-molestation and occupation orders under that Act. But what is “violence”? In particular, is it confined to physical abuse, or does it extend to psychological and economic abuse? This mattered to Mrs Yemshaw, who had left home with her two small children. She had not been hit or threatened with assault, but Mr Yemshaw had, she said, shouted in such a manner as to cause her to retreat with the children to the bedroom, failed to treat her “like a human” and deprived her of housekeeping money; she feared that he would remove the children, accuse her of being incapable as a parent and hit her should she return home (ibid., [16]). While Mr and Mrs Yemshaw were undoubtedly “associated”, the local authority determined that she had not experienced “violence” in the absence of any actual or threatened physical assault.
Law aside, terminology in this area is a matter of considerable debate in the literature at both normative and practical levels. Does “domestic violence” fail to emphasise that the problem is principally one of violence against women perpetrated by their heterosexual partners and ex-partners? Has the expression “it's just a domestic”, attributed (at least historically) to lacklustre police responses, minimised the concept? Does “domestic abuse” better capture the full range of controlling behaviours commonly exhibited in these relationships? The Supreme Court held in Yemshaw that “domestic violence” was not confined to physical violence but extended to “threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm”, (ibid., [28]), including psychological harm. The case was remitted to the housing authority to decide afresh, applying an objective test to the particular facts of the case (ibid., [36]). Lady Hale delivered a majority judgment with which Lord Rodger concurred; Lord Brown rehearsed various counter-arguments without formally dissenting.
After observing that physical violence was not the only natural meaning of “violence”, Lady Hale examined various local and international sources which illustrated that, whatever the common understanding of the term in 1977, by 1996 “domestic violence” was understood globally as a broad concept. Locally, the Association of Chief Police Officers (ACPO)'s definition is now used across key government and non-governmental agencies including in Hounslow Council's own literature: “Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality”. This definition also appeared (for the first time) in the Secretary of State's Homelessness Code of Guidance for Local Authorities in 2006; and the Secretary of State intervened in support of Mrs Yemshaw's appeal.
While these extra-legal definitions could not determine the meaning of s.177(1), Lady Hale found that a broad meaning would not be incompatible with the remainder of the 1996 Act or its purpose (ibid., from [31]) and that a purposive approach sensitive to the evolution in language's meaning over time allowed a broad definition (ibid., from [25]): contrast R. v. Ireland and Burstow [1998] A.C. 147 – whether “bodily harm” in the Offences Against the Person Act 1861 could encompass psychiatric harm; Fitzpatrick v. Sterling Housing Association Ltd. [2001] 1 A.C. 27 – the scope of “family” in other housing legislation. Lady Hale reinforced her conclusion by noting the desirability of joined-up protection across criminal, housing and family law – for example, the concept of “molestation” in the Family Law Act extends far beyond physical violence (ibid., from [22]); and the dynamics of domestic abuse cases, where apparently trivial incidents can herald dangerous escalation over time (ibid., [34]).
Looking beyond housing law, the Supreme Court's recognition of the breadth of “domestic violence” is timely given the Government's pursuit of breathtaking cuts to legal aid. The Legal Aid, Sentencing and Punishment of Offenders Bill will deprive individuals of legal aid for full legal advice and representation in private family law matters such as child contact/residence and finanical remedies on divorce, except (inter alia) where there is certain objective evidence of domestic violence (Sched 1, para 10 and regulations yet to be drafted). There has been extensive debate on the Bill's definition of domestic violence – expanded (from original proposals) to encompass mental and sexual as well as physical abuse, and neglect, maltreatment and exploitation, but not fully mirroring the ACPO definition – and the means by which this might be evidenced in order to unlock legal aid. Here too, as in Yemshaw, it is essential to understand the dynamics of abuse and the diverse help-seeking behaviours of victims. Defining “domestic violence” in law is difficult; so too is detecting it in practice when many victims are reluctant to come forward at all. Getting it wrong in any legal context, whether concerning access to housing, access to justice or otherwise, potentially threatens the lives of vulnerable adults and children.
