Homelessness and the meaning of “other violence” by Marc Samuels
A recent Court of Appeal decision has the potential to widen the
scope of persons owed duties under the homelessness legislation. 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.