Domestic Abuse Bill: At Long Last!
Posted on 21st May 2020
I initially began drafting a post in June 2019 about the Domestic Abuse Bill, however I stopped writing as after reading it, I felt that from a housing law perspective it just didn’t go far enough to protect survivor’s rights.
I am regularly instructed by those fleeing domestic abuse, who in most cases are turned away by local housing authorities for homeless assistance. For those not pregnant and without dependent children, one of the issues we regularly see is that they are denied either emergency accommodation or the main housing duty, as they are not considered to be in priority need.
The Current Law
The current law, in regards to priority need and domestic abuse is as follows:
s. 189 Housing Act 1996 (as amended)
(1)The following have a priority need for accommodation—
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
(2) The Secretary of State may by order—
(a )specify further descriptions of persons as having a priority need for accommodation,
The Secretary of State did later specify six additional categories of people who are in priority need, which is contained within Homelessness (Priority Need for Accommodation) (England) Order 2002. It intended to include those fleeing violence who were not pregnant or without dependent children, stating,
“A person who is vulnerable as a result of ceasing to occupy accommodation because of violence from another person or threats of violence from another person which are likely to be carried out”.
Whilst this may at first glance appear helpful for those who are homeless as a result of fleeing violence, in practice it frankly isn’t and has instead put in place a number of hurdles for those who it intended to assist. The test places a high threshold to be deemed vulnerable as a result of fleeing violence by actually introducing a subjective three stage test:
- Did the applicant cease to occupy the accommodation as a result of violence or threats of violence likely to be carried out?
- Is the applicant vulnerable?
- Is the applicant vulnerable as a result of this?
This is then supplemented by the Homelessness Code of Guidance (2018) Para 21.34, which contains no less than four factors to take into account when considering whether the applicant is vulnerable.
As a result of all these hurdles, I have seen numerous cases of local housing authorities denying priority need as they did not consider that the threat to carry out the violence likely to be carried out, or because they accepted the applicant had been subject to violence but that they were not vulnerable as a result of it. In many cases I have dealt with, after hearing the account of the survivor first hand I have been equally appalled and shocked by such decisions. I have always felt that local housing authorities have perhaps had too much discretion to make these decisions given the budget cuts and lack of housing. The adage of, “You give an inch and they take a mile” often rings true in relation to the way this discretion is often exercised.
In light of these difficulties, my colleague Jack Crown recently published a blog making the case as to why the Bill ought provide automatic priority need to those fleeing violence.
A step in the right direction for victims of domestic violence
It is therefore very welcome news from the Government that the Domestic Abuse Bill will change the current situation. In short, the Bill proposes a change to the rules that will mean that those fleeing domestic abuse and facing homelessness as a result, will be automatically considered in priority need, ensuring more survivors of domestic abuse have access to a safe home.
It is a step in the right direction but what would now be very helpful is for absolute clarity and for the avoidance of any doubt that may well arise leading to vulnerable applicants continuing to be turned away. The final draft or revised guidance will need to express that this will equally apply to those who have first fled into a refuge before making an application to the local authority, thus incorporating the judgment in Birmingham v Ali (i.e. residence in a refuge can mean the applicant is still homeless).
It will also need to go further and provide clarity as to how a local housing authority is to accept that an applicant is homeless as a result of fleeing abuse to be automatically considered in priority need. For example, in the case of accepting an applicant is automatically in priority need by having a dependent child, the local housing authority will usually inquire whether the applicant is in receipt of Child Benefit for that child.
What is clear from the current law is that the burden of inquiry rests with the local housing authority to make such inquiries as are necessary, it is not for the applicant to ‘prove’ their case. The Code of Guidance provides that when undertaking such inquiries, the safety of the applicant is paramount and inquiries cannot be made of the perpetrator. From experience, a written statement from a domestic abuse advocate or a police report will usually satisfy a local housing authority that there has been abuse, but what will happen if the applicant hasn’t contacted a domestic abuse charity, report abuse to the police, told family and friends etc. and an inquiry cannot be made? My suggestion to this is that the local housing authority ought to take what the applicant says at face value and that in most cases the initial interview and assessment of needs which records the applicant fleeing abuse within the Personalised Housing Plan will be sufficient inquiry. For this to happen though, we need to see local housing authority officers properly trained to identify victims of abuse and how local housing authorities ought to handle such cases.
Without further guidance and clarity of these issues, there will just be uncertainly and it is my fear that the “automatic” determination of priority need will be rendered futile.