Yemshaw v London Borough of Hounslow

The sole but important issue on this appeal is the meaning of “violence” in section 177(1) of the Housing Act 1996 (“the Act”). The question is whether, for the purposes of that provision, “violence” requires some sort of physical contact or whether, in the context of “domestic violence”, it should be understood more widely as including abusive behaviour such as psychological, sexual or financial abuse.

The appeal is from the order of HHJ Powles QC in the Brentford County Court on 3 April 2009, by which he dismissed an appeal by the appellant, Mirhet Yemshaw, from the review decision of the respondent, the London Borough of Hounslow (“Hounslow”), which declined to depart from the original decision of the Housing Officer of 29 August 2009 that Mrs Yemshaw was intentionally homeless for the purposes of Part VII of the Act.

The appellant is a married woman with two children, now aged six and one. She formally lived with her husband at the matrimonial home at Belvedere House, Lemon Grove, Feltham, under a secure tenancy in the husband’s sole name. She claims that she had to flee that home due to her husband’s “domestic violence” within section 177 of the Act. She has been living with her two children at a women’s refuge since leaving the former matrimonial home.

On 27 August 2008 the appellant applied to Hounslow for housing assistance on the ground that she was homeless for the purposes of Part VII of the Act. Hounslow’s decision was that she was not homeless within Part VII and it was reasonable for her to occupy the formal matrimonial home. The decision letter said:

“We are of the opinion that your husband may be upset that you left the property with the children, but do not believe that this would lead to probability of threats or actual violence. We apply the statutory test of ‘probability of domestic violence’ and as to whether it is reasonable for you to return to [the matrimonial home] whilst seeking legal advice on your matrimonial rights to the accommodation …”

The appellant appealed to the County Court under section 204 of the Act. She has never claimed that she was physically assaulted by her husband. Her case is that she was frightened by him; his controlling behaviour amounted to emotional, psychological and financial abuse; such conduct is “domestic violence” within section 177 (1) of the Act; section 177 (1) therefore deems it to be unreasonable for her to continue to occupy the matrimonial home; and, accordingly, she was and is homeless for the purpose of Part VII of the Act. Judge Powles rejected that argument and upheld Hounslow’s decision on the basis that he was bound by the judgments and decision of the Court of Appeal in Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404 to hold that “violence” and “domestic violence”, within section 177 (1) of the Act means physical violence involving some physical contact.

Section 175 (3) provides that a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. Section 177 of the Act provides for circumstances in which it is deemed not reasonable for a person to continue to occupy accommodation. It is as follows:

“177 Whether it is reasonable to continue to occupy accommodation

(1)

It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic 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.

(1A) For this purpose “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.

(2)

In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation.

(3)

The Secretary of State may by order specify --

(a)

other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation, and

(b)

other matters to be taken into account or disregarded in determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation.”

Section 182 of the Act is as follows:

“182 Guidance by the Secretary of State

(1)

In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State.

(2)

The Secretary of State may give guidance either generally or to specified descriptions of authorities.”

The Judge, as I have said, considered that he was bound by the decision of this court in Danesh. In that case the applicant and his family entered the United Kingdom as asylum seekers, and were provided with accommodation by Swansea City Council (“Swansea”). The applicant was granted indefinite leave to remain and so became eligible for assistance and housing under Part VII of the Act. Whilst visiting London with his family he applied to Kensington and Chelsea Royal London Borough Council (“K&C”) for assistance under the Act and was placed in temporary accommodation. K&C decided that the applicant had a local connection with Swansea, and referred his case to Swansea under section 198 of the Act. Swansea accepted the referral. The applicant sought a review and relied on two incidents of physical violence against him and verbal abuse suffered by him and his wife in Swansea. He contended that, as a result of those matters, the conditions for referral under section 198 were not met by virtue of the provisions of section 198(2A) and (3) of the Act, which are as follows:

“(2A) But the conditions for referral mentioned in subsection (2) are not met if-

(a)

the applicant or any person who might reasonably be expected to reside with him has suffered violence (other than domestic violence) in the district of the other authority; and

(b)

it is probable that the return to that district of the victim will lead to further violence of a similar kind against him.

(3)

For the purposes of subsections (2) and (2A) “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 review officer of K & C upheld the decision on the grounds that the two incidents of physical violence were random and were not racially motivated and that the verbal abuse did not amount to threats of violence, and that the applicant would probably not experience similar incidents if he returned to Swansea. The applicant’s appeal to the County Court under section 204 of the Act was allowed on the ground, among others, that K & C had taken a mistaken approach to the meaning of “violence” and had failed to take sufficiently into account the perceptions of the applicant. K and C’s appeal to the Court of Appeal was allowed, and the decision of the review officer was restored on the ground, among others, that “violence” in section 198 involves some sort of physical contact. Neuberger LJ (as he then was) gave the leading judgment, with which the other two members of the court agreed. His reasoning is set out in the following paragraphs of his judgment:

“14.

The council’s contention in this connection is that, as Mr McDougall thought, "violence" in section 198 involves in a case such as this some sort of physical contact.  In my view, that contention is correct, and the judge was wrong.  In section 198 "violence" means physical violence and the word "violence" on its own does not include threats of violence, or acts or gestures, which lead someone to fear physical violence.  I reach that conclusion for a number of reasons. 

15.

First, this is the natural meaning of the word "violence".  I appreciate that a contextual meaning of a word is not of itself an entirely safe basis for interpretation; a particular word must be construed in its context.  However, when an ordinary English word is used, one is entitled to assume that, in the absence of good reason to the contrary, it should be given its primary natural meaning and to my mind, when one is talking of violence to a person, it involves physical contact. 

16.

Secondly, in section 198(3) violence is defined as (a) violence or (b) threats to violence which are likely to be carried out.  It seems to me that if Mr Loveland's contention is correct and the judge was right, the sort of actions which are said to be encapsulated within paragraph (a) really render paragraph (b) redundant.  It is a little difficult to see how "violence" extends to the full concept of assault in criminal law, if it was necessary to include the extension in paragraph (b).  Indeed, paragraph (b) involving as it does a purely objective criterion, seems positively inconsistent with the judge's view.

17.

Thirdly, relying on the meaning of a different word, "assault", in a different context, namely the criminal law (the common law, and sections 18, 20, 47 of the Offences Against The Person Act 1861…) to assess the meaning of "violence" in section 198 of the Housing Act 1996 seems to me quite wrong in principle and likely to lead to error as it has done in the present case.  It is true that Mr McDougall, at one point in the review letter, used the word "assaulted".  However, it is quite clear from its context and common sense that he was using it to mean "suffered violence", rather than the somewhat esoteric criminal law meaning of that expression.

18.

Fourthly, there is the Homelessness Code of Guidance for Local Authorities (July 2002) – issued by the Office of the Deputy Prime Minister and the Department of Health – to which the local housing authorities are statutorily required to have regard under sections 182 and 198 of the 1996 Act.  It seems to me that in various passages that guidance is consistent with the view that the word "violence" in Part VII of the 1996 Act must involve some sort of physical contact.  To take one example, in paragraph 8.32 of the guidance one sees this:

‘In some cases severe harassment may fall short of actual violence or threats of violence to be carried out.  Housing authorities should consider carefully whether applicants who have fled their homes because of non-violent forms of harassment, for example verbal or psychological abuse, or damage to property, are vulnerable as a result.’

19.

Fifthly, Mr Loveland accepts that, if his definition of violence is correct, an applicant would be entitled to have a subjective test applied to the question of whether or not he feared violence.  That appears to me to be inappropriate.  The terms of section 198 are objective in nature: whether violence occurred, whether a threat of violence had occurred, whether either is likely to occur, and whether it is probable that such acts or threats may occur.  Subjective concepts do not seem to be involved in that section.  Furthermore, it seems somewhat difficult for a housing officer to assess the genuineness of an applicant's fears and it is, further, questionable, at least to my mind, whether a housing authority's duty under section 198 should be influenced, indeed determined, by the subjective feelings of an applicant about the likelihood of violence.

20.

Accordingly, I consider that the review letter adopted a proper approach to the meaning of the word ‘violence’ in section 198 and I would allow the appeal on that ground.” 

In addition to written and oral submissions on behalf of the appellant, we have also received written submissions on behalf of the Secretary of State for Communities and Local Government (“the Secretary of State”), as an intervener.

The definitions of “violence” and “domestic violence” in section 177(1A) and section 198 (3) are identical, and it is not suggested by the appellant or the Secretary of State that they bear different meanings. They submit, however, that Danesh should not be followed in the present case.

At the forefront of the appellant’s case is that the Court of Appeal in Danesh relied upon the language of the Homelessness Code of Guidance for Local Authorities (“the Code”) issued in July 2002 (“the 2002 Code”). The relevant paragraphs, dealing with what is “violence” and “domestic violence”, for the purposes of section 177 of the Act, were paragraphs 6.16 to 6.21. For the purpose of this appeal it is necessary only to set out paragraphs 6.18 and 6.19, which were as follows:

“6.18

Domestic violence (or threat of violence) is not confined to instances within the home but extends to violence outside the home from a person with whom the applicant or a member of his or her household is associated. The fact that violence has not yet occurred does not, on its, own, mean that it is not likely to occur. When considering cases involving domestic violence, housing authorities will need to make inquiries but should not necessarily expect evidence of violence as such from the applicant. And an assessment of the likelihood of a threat of violence being carried out should not be based solely on whether there has been actual violence in the past.

6.19

All other forms of violence and threats of violence likely to be carried out towards the applicant or members of his or her household will need to be taken into account for him or her to continue to occupy accommodation.”

Mr Martin Hodgson, counsel for the appellant, has pointed out in his skeleton argument that paragraph 15.30 of the 2002 code, dealing with referral cases under section 198, which was the factual subject matter of Danesh, mentioned only violence or threats of violence. A new version of the Code was issued in 2006 (“the 2006 Code”). It is, says Mr Hodgson, in stark contrast to the 2002 Code. Although the 2006 Code was published in July 2006 and came into force in September 2006, and the judgment of the Court of Appeal in Danesh was not handed down until October 2006, it would appear that the Court of Appeal was not referred to the new version of the Code. The equivalent paragraphs of the 2006 Code to paragraph 6.18 and 6.19 of the 2002 code are as follows:

“8.21

The Secretary of State considers that the term ‘violence’ should not be given a restrictive meaning, and that ‘domestic violence’ should be understood to include threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between persons who are, or have been, intimate partners, family members or members of the same household, regardless of gender or sexuality.

8.22

An assessment of the likelihood of a threat of violence being carried out should not be based on whether there has been actual violence in the past. An assessment must be based on the facts of the case and devoid of any value judgements about what an applicant should or should not do, or should or should not have done, to mitigate the risk of any violence (e.g. seek police help or apply for an injunction against the perpetrator). Inquiries into cases where violence is alleged will need careful handling. See Chapter 6 for further guidance.”

Neuberger LJ referred expressly in the context of his fourth reason to paragraph 8.32 of the 2002 Code. The equivalent provision in the 2006 Code is paragraph 10.34, which is in identical terms to those quoted by Neuberger LJ in Danesh.

Mr Hodgson submits that, in the light of those provisions of the 2006 Code and the statutory obligation of local housing authorities and social service authorities in section 182 of the 1996 Act to have regard to guidance given by the Secretary of State, Danesh would have to be decided differently today. Mr Hodgson submits that such an approach, that is to say a flexible one, in which the meaning of “violence” in Part VII of the Act will vary from time to time, is consistent with a purposive approach to the interpretation of the Act. Part VII, he emphasises, is social legislation, designed to address a particular need involving some of the more vulnerable members of society, and it is right that the legislation should be interpreted and applied in accordance with changes in understanding and social awareness of, and policy responses to, domestic violence and other violence.

Mr Hodgson submits that the court can and should take judicial notice of the fact that domestic violence has become more prominent in recent years and the wider definition adopted in the 2006 Code is in common use. In his skeleton argument he informed the court that, apart from the 2006 Code, the wider definition of domestic violence, as including psychological, sexual or financial abuse, is adopted by the Home  Office, the Association of Chief Police Officers, the Crown Prosecution Service, the Ministry of Justice, Refuge, Women’s Aid, the Royal College of Psychiatry, the NSPCC, the Magistrates’ Court Service and the Immigration Directorate Instruction.

Mr Hodgson has emphasised in his oral submissions that the first ground of Neuberger LJ’s reasons in Danesh was that the term “violence” in Part VII of the Act should be given its natural meaning “in the absence of good reason to the contrary”. He submits that the 2006 Code, government policy, and the use of the term “domestic violence” by the various organisations to which I have referred, show that there is now good reason to interpret the word “violence” in a contrary meaning to its primary and natural meaning. He submits that these points not only answer Neuberger LJ’s fourth reason (the terms of the 2002 Code), but also his first reason (the natural meaning of the word “violence”) and his third reason (rejection of equivalence with assault in criminal law which is not advanced by the appellant in the present case).

So far as concerns Neuberger LJ’s second reason (that, if “violence” in section 198(3)(a) includes words, actions or gestures which cause the applicant to fear physical attack, section 198(3)(b) would be redundant), Mr Hodgson has submitted in his skeleton argument that such a definition is not being advanced on this appeal. He has submitted that the definition being advanced on the appeal, consistent with the 2006 Code, would not render redundant the separate provision for “threats of violence from another which are likely to be carried out” in section 177(1A) (b) and section 198(3)(b) of the Act. Mr Hodgson has sought in his skeleton argument to distinguish Danesh, in relation to this point, on the further ground that it was found as a fact in that case that the applicant was not objectively at risk and so could not bring himself within section 198(3)(b), and also the applicant was seeking to draw an analogy with assault in criminal law.

Mr Hodgson has pointed out in his skeleton argument that Neuberger LJ’s fifth reason was based on a concession made by counsel for the applicant in Danesh. He has submitted that the concession was wrongly made, or at all events goes too far, and that there is no reason why the housing authority cannot take an objective view of the facts even if it takes into account the applicant’s fears.

The Secretary of State’s written submissions, prepared by counsel Mr James Maurici, emphasise the following points. The 2006 Code reflects the Government’s strong policy position on tackling domestic violence. The Secretary of State’s written submissions refer in this context to an inter-Ministerial Group on domestic violence set up in 2003, the Government’s consultation paper “Safety and Justice: The Government’s Proposals on Domestic Violence” the Domestic Violence, Crime and Victims Act 2004; the Home Office publication in 2005 “Domestic Violence: A National Report”, and the fact that, as pointed out on behalf of the appellant, the wider definition of “domestic violence” has been adopted across Government.

While accepting that the 2006 Code cannot override the 1996 Code, the Secretary of State submits that the change and extended meaning of “domestic violence “ in the 2006 Act is relevant to the proper interpretation of section 177 of the Act. The Secretary of State submits that the change goes directly to the fourth reason given by Neuberger LJ in Danesh and, for the same reasons as were given there, the definitions in the 2006 Code is relevant and of persuasive authority.

By way of elaboration of that point, the Secretary of State has referred to paragraph [17] in the judgment of Lloyd Jones J in the Divisional Court in Chief Constable of Cumbria v Wright [2006] EWHC 3574, with which Keene LJ agreed, where he said that “in general, official statements by government departments administering an Act, or by other authority concerned with an Act, may be taken into account as persuasive authority on the legal meaning of its provisions.” Lloyd Jones J cited in that connection section 232 of Bennion, “Statutory Interpretation” (4^th ed). That section of Bennion was again cited by the House of Lords in R v Montila [2004] UKHL 50, in which Lord Hope, giving the opinion of the Judicial Committee, said at paragraph [40] that:

“There is some authority for the view that official statements by a government department which is responsible for an Act may be taken in to account as persuasive authority as to what an Act means”

The Secretary of State submits that the wider definition informs the meaning of the word “violence” in the particular context that arises here, namely “domestic violence”. In that respect, matters have moved on in terms of the understanding of “domestic violence” in ways of which the Court of Appeal was apparently not made aware in Danesh. For that reason, and also because Danesh was not about the meaning of “domestic violence”, which is central to the present case, but rather the meaning of “violence” in a non-domestic context, the Secretary of State says that Danesh can be distinguished.

The Secretary of State further submits that the Act is one that continuously updates. That is supported by reference to section 288 of Bennion, “Statutory Interpretation” (5^th Ed.). The Secretary of State says that this is a particularly important point in the context of homelessness legislation. Reference is made in this regard to Lord Wilberforce’s observations in Din (Taj) v Wandsworth LBC [1983] AC 657 at page 644A that such legislation should be interpreted “with liberality having regard to its social purposes”.

The starting point is that Danesh was not decided per incuriam in the following sense explained by Lord  Donaldson MR in Duke v Reliance Systems Ltd [1988] 1 QB 113 at page 113D, with whom the other members of the Court of Appeal agreed:

“I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding upon it or a statute, and that in either case it has to be shown that, had the court had this material, it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion.”

The next point is that the submissions in support of the appeal overstate the significance of the 2006 Code in the context of the proper interpretation of section 177 of the Act. Section 182 of the Act directs local housing authorities and social services authorities in very general terms to have regard to guidance given from time to time by the Secretary of State in the exercise of their functions relating to homelessness and the prevention of homelessness. Neither section 182 nor any other provision in the Act provides that the expressions “violence” and “domestic violence” in Part VII of the Act bear the meaning which the Secretary of State may ascribe to them from time to time. The contrary has not been argued.

There is some authority that official statements of a government department which is responsible for administering an Act may, in an appropriate case, be taken into account as persuasive authority as to the meaning of the Act. The significance of such material is, however, limited. I have already mentioned the Secretary of State’s reliance on a passage in paragraph [17] in the judgment of Lloyd-Jones J in Chief Constable of Cumbria v Wright. It is important to place the passage in the context of the full paragraph, which is as follows:

“It is, of course, for the courts and not the executive to interpret legislation.  However, in general, official statements by government departments administering an Act, or by any other authority concerned with an Act, may be taken into account as persuasive authority on the legal meaning of its provisions.  That is the principle stated by Bennion, Statutory Interpretation, 4th ed. 2002  In the present case we are concerned with guidance published by the Home Office, which is the government department which had responsibility for the enactment and operation of the legislation in question.  In any given case, it may be helpful for a court to refer to the guidance in the interpretation of the legislation.  It may be of some persuasive authority.  However, to my mind that is the limit of its influence.  It does not differ in that regard from a statement by an academic author in a text book or an article.  It does not enjoy any particular legal status.  There seems to me to be no satisfactory basis for the submission that it gives rise to a presumption that the views it contains are correct and should be rejected only for good reason.”

That paragraph was commented upon by Moore-Bick LJ in Brent London Borough Council  v Risk Management Partners Ltd [2009] EWCA Civ 490 in the following terms, with which Hughes LJ agreed and which I find compelling:

“227.

I draw attention to this because I have reservations about the extent to which an Explanatory Memorandum published by a minister or government department can properly be used as an aid to the interpretation of the legislation to which it refers. In Chief Constable of Cumbria v Wright & Anr [2007] 1 WLR 1407 (D.C.) Lloyd Jones J. (with whom Keene L.J. agreed) accepted, following Bennion, Statutory Interpretation, 4^th ed (2002), section 232, that such a document may be taken into account as persuasive authority on the meaning of the legislation in question. However, it is necessary to appreciate the limits of that approach. It is an important constitutional principle, as Lloyd Jones J. himself recognised, that the judiciary, not the executive, decide the meaning and effect of legislation. It was no doubt for that reason that in the same passage he emphasised that a document of this kind does not differ in its status from a statement by any other informed commentator, such as an academic author. Not surprisingly, he rejected the submission that it gives rise to a presumption that the views contained in it are correct and should be rejected only for good reason. For my own part I would accept that an Explanatory Memorandum may be of assistance for some purposes, for example, if it throws light on the background to the legislation and thereby enables the court to understand better its general purpose. I would accept also that insofar as the views expressed in such a document are inherently persuasive they may be taken into account. However, in my view that is as far as it goes. It is also worth noting that in R (Gillan and another) v Commissioner of Police of the Metropolis [2006] UKHL 12, [2006] 2 A.C. 307 Lord Bingham expressed the view that a Home Office Circular addressed to chief constables concerning the use of powers under section 44 of the Terrorism Act 2000 to stop and search members of the public at random for articles that could be used in connection with terrorism could not, even arguably, affect the construction of that section.”

Far from the 2006 Code, or any other version of the Code, governing the meaning of “violence” and “domestic violence” in Part VII of the Act in general, and in section 177(1) in particular, “if the [C]ode differs from the statute, as interpreted by this court, it is the statute which prevails”. (Griffin v Westminster City Council [2004] EWCA Civ 104 at paragraph [14] in the judgment of Kennedy LJ, with whom the other members of the court agreed).

I fully acknowledge the principle that the expressions in some statutes bear a meaning that may change with changes in social or other conditions. I would myself hesitate to apply that principle to the word “violence” either on its own or in the context of “domestic violence” in section 177(1) of the Act, since section 177(3) expressly enables the Secretary of State by order to specify other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation and any other matters to be taken into account or disregarded in determining whether it would be, or would have been, reasonable to continue to occupy accommodation. An interpretation of “violence” in accordance with its natural meaning as involving physical contact, as decided in Danesh, would not, therefore, stultify the relevance of changing social attitudes and government policy in respect of domestic violence. The Secretary of State could make express provision in an Order reflecting such changes.

Further, the emphasis of the appellant has been on changes in the meaning of the expression “domestic violence” rather than the simple word “violence”. The provisions of section 177(1) and 177(1A), however, indicate that Parliament did not intend “violence” to have a different meaning according to whether it was “domestic” or not, since the only distinction made between domestic and other violence in those provisions is that, by virtue of section 177(1A)(b), violence is “domestic violence” if it is from a person who is associated with the victim.

Furthermore, as was recognised by the court in Danesh, albeit without any challenge by the applicant in that case, a wider definition of domestic violence, such as appears in the 2006 Code, would inevitably give rise to greater practical difficulties on the part of the housing authority than a definition limited to physical violence. An assessment would have to be made of the subjective views and objective vulnerability and sensitivity of those claiming to be the subject of domestic violence, making the allocation of the scarce resource between competing applicants even more difficult. Those are precisely the type of considerations for which the Secretary of State might feel compelled to make provision in an Order under section 177(3).

Furthermore, such regard to the subjective sensitivities and vulnerability of individual applicants would appear to be inconsistent with the straightforward requirement under section 177(1) that, in the case of domestic violence or other violence, it is not deemed reasonable for a person to continue to occupy accommodation.

In any event, it cannot seriously be contended that the meaning of “violence” and “domestic violence” has, due to social and other changes, acquired a new meaning since the judgments in Danesh were handed down in October 2005. Mr Hodgson did not contend with any vigour to the contrary. The decision is therefore binding on this court in any event.

For those reasons, I would dismiss this appeal.

I entirely agree.

I agree.