Bond v Leicester City Council

In domestic violence cases, the reasonableness of continued occupation under section 177(1) of the Housing Act 1996 depends solely on whether occupation will probably lead to violence or to threats likely to be carried out. It is a factual assessment, free from value judgments about what the applicant ought to do.

Protective measures are relevant only where they have been taken, or probably will be taken, and will probably reduce the risk below the statutory threshold. Their mere availability cannot justify assuming that they will be used or effective. For intentional homelessness, a deliberate act or omission must cause the applicant to cease occupying the accommodation; it does not alter the statutory characteristics which make that accommodation reasonable to occupy.

The appellant left housing association accommodation after domestic violence and subsequent threatening behaviour by her former cohabitant. Leicester City Council found her homeless and in priority need, but intentionally homeless because she had left without seeking legal advice, police assistance, landlord intervention or practical security measures.

On an appeal under section 204 of the Housing Act 1996, the Leicester County Court upheld that decision. The appellant brought a second appeal to the Court of Appeal under section 55(1) of the Access to Justice Act 1999.

The central issue was whether, when applying section 177(1) of the 1996 Act, a housing authority may consider what legal or practical remedies an applicant could have pursued, or whether it must determine only whether continued occupation would probably lead to domestic violence.

1. The appeal was allowed unanimously. Lady Justice Hale delivered the judgment, with which David Steel J agreed. The authority had not clearly asked or answered the statutory question under section 177(1) of the Housing Act 1996. Its decision was varied to record that the appellant had not become homeless intentionally.

2. Domestic violence cases are governed by the specific probability test in section 177(1), both when determining present homelessness under section 175(3) and intentional homelessness under section 191(1). Reasonableness is not at large. The authority cannot consider general value judgments about what the applicant ought to have done. The cases concerning the wider reasonableness inquiry under earlier legislation did not govern this statutory test.

3. The assessment is a question of fact. Measures intended to prevent violence may reduce the risk below the level of probability where they have been taken, or probably will be taken, and will probably be effective. The authority must determine those matters on the evidence. It cannot assume either that available measures will be used or that they will work. The Secretary of State's guidance supported the conclusion that an applicant should not be treated as obliged to seek an injunction which she considers ineffective.

4. For section 177(1), “probable” means more likely than not. By contrast, the requirement that a threat be “likely” to be carried out includes a real or serious possibility. Past violence, repeated threatening conduct and the perpetrator's response to exclusion were therefore capable of establishing the required probability.

5. Under section 191(1), the words concerning what a person deliberately does or fails to do relate to the consequence of ceasing to occupy the accommodation. They do not make the probability of violence a consequence of failing to pursue protective measures. The remaining statutory words describe the necessary characteristics of the accommodation.

6. The evidence contained abundant material from which the authority could have found that continued occupation would probably lead to further domestic violence. Remittal would serve little purpose. Exercising the power under section 204(3), the court varied the decision rather than merely quashing it.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The decision was varied under section 204(3) of the Housing Act 1996 to state that the appellant had not become homeless intentionally: [2001] EWCA Civ 1544.
2. Leicester County Court: HHJ O'Rorke dismissed the appellant's section 204 appeal on 22 September 2000 and upheld the local authority's intentional-homelessness decision.
3. Leicester City Council: On 9 August 2000, the reviewing officer found the appellant homeless and in priority need but intentionally homeless because she had left accommodation without pursuing available protective measures.