Yemshaw v London Borough of Hounslow

For purposes of section 177 of the Housing Act 1996, “violence” in “domestic violence” retains its ordinary meaning of physical violence involving some physical contact. It does not encompass non-physical psychological, sexual, financial or emotional abuse merely because that conduct causes fear. Threats of violence likely to be carried out are separately covered. The meaning is not altered by Secretary of State guidance or changing social attitudes. Guidance may be persuasive, but it cannot determine or override statutory meaning. The statutory scheme permits the Secretary of State to prescribe additional circumstances by order. “Violence” has the same meaning in domestic and non-domestic contexts; the distinction is whether the perpetrator is associated with the victim.

The appellant, a married woman with two children, left the matrimonial home and obtained refuge accommodation. She claimed that her husband’s controlling behaviour constituted domestic violence under section 177 of the Housing Act 1996, although she had not been physically assaulted.

Hounslow decided that she was not homeless because it was reasonable for her to continue occupying the matrimonial home. Its review decision was upheld by the Brentford County Court, which considered itself bound by Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404. The central issue before the Court of Appeal was whether “violence” in section 177 required physical contact or included psychological, sexual, financial and emotional abuse.

1. The appeal was dismissed unanimously. The Court of Appeal held that Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404 remained binding and had not been decided per incuriam. The doctrine applies where a court lacked knowledge of a binding decision or statute and, had it known of that material, would necessarily have reached a different conclusion. It does not apply merely because different arguments or material might have produced a different result. The court applied Duke v Reliance Systems Ltd [1988] 1 QB 113.

2. Section 177 of the Housing Act 1996 was construed as using “violence” in its ordinary sense of physical violence involving some physical contact. The word was not given a different meaning because the violence was domestic. The domestic character of the violence depended on the perpetrator being associated with the victim. Threats of violence likely to be carried out remained separately covered and were not subsumed within “violence”.

3. The 2006 Homelessness Code could not alter that construction. Section 182 required housing authorities to have regard to Secretary of State guidance, but did not delegate statutory interpretation to the executive. Government guidance could be considered as persuasive material only. It had no special legal status and created no presumption that its interpretation was correct. The court followed the approach in Chief Constable of Cumbria v Wright [2006] EWHC 3574, applied the reasoning in Brent London Borough Council v Risk Management Partners Ltd [2009] EWCA Civ 490, and reaffirmed that the statute prevailed over inconsistent guidance as stated in Griffin v Westminster City Council [2004] EWCA Civ 104.

4. Changing social attitudes did not require a different interpretation. Section 177(3) provided a statutory mechanism by which the Secretary of State could prescribe further circumstances or matters relevant to the reasonableness of continued occupation. A broader definition would also create practical difficulties by requiring assessment of subjective views, vulnerability and sensitivity, which was inconsistent with the straightforward statutory scheme.

Order: appeal dismissed.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the decision below.
• Brentford County Court, on 3 April 2009, dismissed the appellant’s appeal under section 204 of the Housing Act 1996 and upheld Hounslow’s review decision.
• London Borough of Hounslow had declined to depart from the housing officer’s decision that the appellant was not homeless because it was reasonable for her to occupy the matrimonial home.