Yemshaw v London Borough of Hounslow

For homelessness purposes, domestic violence under section 177(1) of the Housing Act 1996 is not confined to physical contact. It includes threatening or intimidating behaviour and other abuse which, directly or indirectly, may create a risk of physical or psychological harm.

The probability of future violence must be assessed objectively, but by reference to the particular facts, circumstances and personalities involved. Past conduct remains relevant, although isolated or minor incidents do not necessarily establish a probability of recurrence.

Words such as “violence”, which are neither terms of art nor fixed in meaning, may be interpreted in accordance with developing social understanding where the updated meaning accords with the statutory purpose.

The appellant left the matrimonial home with her two young children. She told the local housing authority that her husband shouted at her, denied her housekeeping money, demeaned her and caused her to fear that he might hit her or take the children. The authority and its review panel decided that she was not homeless because her husband had neither assaulted her nor expressly threatened physical violence.

The Court of Appeal, applying Danesh v Kensington and Chelsea Royal London Borough Council [2006] EWCA Civ 1404, dismissed her appeal in [2009] EWCA Civ 1543. The Supreme Court had to decide whether “domestic violence” in section 177(1) of the Housing Act 1996 was limited to actual physical violence or could extend to abusive psychological behaviour reasonably described as violence.

1. Appeal allowed unanimously; decision remitted. Lady Hale, with whom Lord Hope and Lord Walker agreed, held that the authority had applied an unduly narrow understanding of domestic violence. Lord Rodger agreed with her reasons and added observations of his own. Lord Brown expressed substantial doubts but did not dissent. The application therefore had to be reconsidered by the local housing authority.

2. Domestic violence in section 177(1) of the Housing Act 1996 is not confined to physical contact. It includes physical violence, threatening or intimidating behaviour, and other forms of abuse which may directly or indirectly create a risk of harm. Lord Rodger likewise held that deliberate non-physical conduct, or threats of such conduct, capable of causing psychological harm falls within “violence”. A contrary construction would understate the seriousness of psychological harm.

3. “Violence” is not a term of art. It can bear several meanings, and the behaviour to which it applies may develop with social understanding. Following the approach illustrated by R v Ireland [1998] AC 147 and Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, an updated meaning was permissible because it served the statutory purposes. Those purposes include protecting household members from harm and giving victims a genuine choice between remaining with legal protection and leaving to begin a new life.

4. The express reference to threats did not require “violence” to be confined to physical acts. Some frightening conduct, including stalking behaviour and silent calls, may not take the form of an express threat. Nor is a reference to threats redundant when violence includes such abuse as confinement or deprivation of food or money.

5. Section 177 is forward-looking. The authority must determine objectively whether continued occupation will probably lead to violence, while applying that assessment to the particular facts, circumstances and personalities involved. Isolated or minor past acts do not necessarily establish a probability of recurrence.

6. The Court displaced the physical-contact rule in Danesh [2006] EWCA Civ 1404. Lady Hale inclined, without deciding, to the view that “other violence” has the same meaning as domestic violence, although context may make the seriousness threshold higher where the alleged perpetrator is not associated with the victim.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and remitted the application to the local housing authority for reconsideration under the wider meaning of domestic violence: [2011] UKSC 3.
2. Court of Appeal: Bound by Danesh v Kensington and Chelsea Royal London Borough Council, held that violence required physical contact and dismissed the appeal: [2009] EWCA Civ 1543.
3. Local housing authority: The housing officers and review panel concluded that the appellant was not homeless because her husband had neither struck her nor threatened to do so.