England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
HIS HONOUR JUDGE O'RORKE

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 23rd October 2001

LADY JUSTICE HALE:

1. This is an appeal against an order made by HHJ O'Rorke in the Leicester County Court on 22 September 2000. He dismissed the appellant's appeal, brought under section 204 of the Housing Act 1996, against the decision of the respondent local authority dated 9 August 2000. The authority had held that the appellant had become intentionally homeless and accordingly they had no duty to provide her with accommodation under section 193 of the Act.

2. Technically therefore this is a second appeal within the meaning of section 55(1) of the Access to Justice Act 1999. This applies 'Where an appeal is made to a county court or to the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter . . ., ' which clearly covers this case: see Azimi v London Borough of Newham, (2001) 33 HLR 569. This is somewhat surprising, as the section was more obviously aimed at cases where there had already been one appeal from a judicial determination, and not, as here, at cases where there was an appeal from an administrative decision. Nevertheless, the consequence is that, ' ... no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the Court of Appeal to hear it.' Mantell LJ gave permission to appeal on 8 December 2000.

3. This case clearly does raise an important point of principle under the homelessness provisions of the Housing Act 1996: may a local housing authority have regard, among other things, to the availability of other remedies, both legal and practical, when determining whether it is probable that domestic violence will result from the continued occupation of accommodation?

   The law

4. The question arises in this way. Section 175(1) of the Housing Act 1996, provides that a person is homeless if he has no accommodation available to him which he has a right to occupy. Section 175(3) however qualifies this: '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(1) provides as follows:

   '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.

   For this purpose "domestic violence", in relation to a person, means

   violence from a person with whom he is associated, or threats of

   violence from such a person which are likely to be carried out.'

   The definition of 'associated person' in section 178(1) includes '(b) cohabitants or former cohabitants.'

5. It is common ground between Mr Luba QC, for the appellant, and Mr Arden QC, for the respondent, that section 177(1) applies a different test of reasonableness in domestic violence cases from that which applies in other cases. In other cases, the question of whether or not it is reasonable for a person to continue to occupy accommodation which is available to him is at large. The authority may take any relevant circumstances into account. Under section 177(2), '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.' As Mr Arden put it, people are not expected to put up with domestic violence because there is a housing shortage in the area. In domestic violence cases, the authority must apply the probability test in section 177(1) and cannot take other matters into account.

6. This distinction is supported, as Mr Luba points out, by section 177(3). Paragraph (a) permits 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' (emphasis supplied). He has not so far supplemented the rule in section 177(1). Paragraph (b) permits the Secretary of State, by order, to specify '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.' To date, he has supplemented section 177(2) by specifying affordability for that purpose.

7. The authority's duties differ according to whether a person is homeless intentionally (s 190), not in priority need but not homeless intentionally (s 192), or in priority need and not homeless intentionally (s 193). Under section 191(1),

   'A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.'

8. Mr Arden also accepts that the rule in section 177(1) is as applicable to the reasonableness requirement in section 191(1) as it is to the equivalent requirement in section 175(3). This must be right as a matter of logic and common sense. It is also supported by the reference to 'would have been reasonable to continue to occupy' in section 177(3)(b), which must relate to a person who has already left.

9. Also relevant are the authority's duty under section 184 to make inquiries into individual cases and under section 182 to 'have regard' to guidance given by the Secretary of State in the exercise of their functions relating to homelessness and the prevention of homelessness.

   The facts

10. The appellant was born on 25 December 1978. She has two children, Justin and Kyle, who were born in December 1995 and December 1996 and thus aged 4 and 3 in August 2000 (when the decision in question was made). Their father is Mr Martin O'Neill.

11. The appellant lived at 28 Edmonton Road between 27 July 1995 and 17 March 1997. She left because it was too small and damp (one notes that both children were born during her occupation of this property). She then lived at 13 Northfields Road until 18 August 1997 but left due to racial harassment. Between 6 October 1997 and 20 April 1998 she lived at 205 Belgrave Boulevard but left because of domestic violence from Mr O'Neill. Between 1 June 1998 and March 1999 she had accommodation at 25 Collett Road but left during that time, again because of domestic violence from Mr O'Neill. On 18 January 1999 she was rehoused at 18 Appleby Close, Kirby Firth, Leicester, as an assured tenant of the De Montfort Housing Association.

12. She left Appleby Close in July 1999. According to the review decision letter of 9^th August 2000:

    'Shortly after Miss Bond took up occupation of 18 Appleby Close contact with Mr O'Neill was resumed and although there was no difficulty at the beginning problems arose as Mr O'Neill began to refuse to leave the property when asked. If Miss Bond complained there would be aggression from Mr O'Neill and according to Miss Bond on at least one occasion he assaulted her by pushing her up against the wall and slapping her repeatedly. Following the assault Miss Bond refused to let Mr O'Neill into the property, however, he would continue to visit the property sitting in the back garden shouting and throwing stones at the windows. Miss Bond subsequently viewed the situation as intolerable and fled to London . . . '

    She stayed at a refuge in Chiswick, then returned to Leicester and alternated between her mother's address and a friend's address.

13. On 11 February 2000 she approached the council and applied for assistance. At that stage the accommodation at Appleby Close was still available to her. The Council's decision letter dated 17 April 2000 refused her application on the ground that it was reasonable for her to return there. The reasons given were:

    'Whilst I recognise that you have a long history of fleeing harassment from Mr O'Neill, you have never taken any preventative measures to address this matter. I am satisfied that you have left 18 Appleby Close, Leicester, without taking any reasonable steps to inform either De Montfort Housing Society, the Police or any other representative body in relation to the alleged harassment.'

    The letter recommended that she 'take actions to address the alleged harassment'.

14. The appellant instructed SHARP to represent her and they applied for a review under section 202 of the 1996 Act. An exchange of letters followed. While this was happening, 18 Appleby Close was repossessed. Hence it was no longer available to her. The review decision letter, which is the subject of this appeal, is dated 9 August 2000. The reviewing officer found Miss Bond homeless and that she had a priority need because of the children, but that she was homeless intentionally as she had deliberately ceased to occupy accommodation which was available for her occupation and he found it to be reasonable for her to continue to occupy that accommodation. The reasons given were as follows:

    'Miss Bond has been the subject of domestic violence from Mr O'Neill for some considerable time having had to flee two previous properties before arriving at Appleby Close, Leicester. In my view Miss Bond should have taken action under the criminal/civil law to prevent Mr O'Neill from coming near her or indeed Appleby Close. The nature of the problems at Appleby Close were that once Mr O'Neill had been excluded from 18 Appleby Close he did not seek to re-enter the property by force. In these circumstances Miss Bond should have, at the very least, sort [sic] legal advice and indeed at the very least, should have approached both the Police and the landlord. Miss Bond would not be on her own as the landlord in this case, being a social landlord, had its own remedies to keep Mr O'Neill away from the property and the area. Miss Bond herself would have been offered protection in the way of alarms at her property, which if used would guarantee a grade 1 response from the Police. Both the Police and social landlord have domestic violence policies which would mean that additional security in the way of toughened doors, toughened glass, and indeed in some cases, cameras can be fitted at the victim's property. I do not accept your client's position that Mr O'Neill is above the law and have decided that to consider the legal remedies is not sufficient but that she should have obtained both advice and assistance from all the agencies and consequently, I consider that she became homeless intentionally as she failed to take these measures and as a consequence of her failure, she ceased to occupy accommodation which was available for her occupation and would have been reasonable for her to continue to occupy.'

    The judgment below

15. The appellant exercised her right to appeal to the county court. This is an appeal on a point of law only. The proper approach to such appeals was set out in Crawley Borough Council v B (2000) 32 HLR 636.

16. The judge had to construe section 177(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…' He rightly held that 'this' refers to continued occupation of the property in question. But he also held that 'it cannot be said simply that it is a [? the] fact of occupation of those particular premises which itself gives rise to a risk of domestic violence.' He held that the Council were entitled to take two considerations into account. The first was that the risk of domestic violence appeared to stem substantially from Miss Bond's own conduct in continuing contact or possibly a relationship with the perpetrator. The probability of domestic violence stemmed more from her continued relationship with him than from her occupation of the premises.

17. Both parties object to this finding by the judge as there was nothing in the material before the court to suggest that the authority did take into account the risk of violence stemming from her continued contact or relationship with Mr O'Neill.

18. Secondly, however, he held that it seemed that once Miss Bond had succeeded in excluding Mr O'Neill he did not force his way in and there was no allegation of further violence or threat of violence. In those circumstances, the authority were entitled to take into account the steps it was reasonable for her to have taken to protect herself from any risk of further violence. There was no evidence here that such action would have been ineffective or even that she genuinely feared that it would be ineffective. She had succeeded in excluding him from the premises and he did not then seek to gain re-entry.

    The arguments in this appeal

19. The main issue in this case is whether this particular local authority asked themselves the right question when making their decisions. Did they simply apply their minds to the question in section 177(1): is (or was) it probable that Miss Bond's continued occupation of 18 Appleby Close would lead to actual domestic violence against her or to a threat of domestic violence which is (or was) likely to be carried out? Or did they treat the matter as one at large, allowing them to take into account wider considerations of reasonableness, and in particular what the applicant could be expected to do (or have done) to protect herself?

20. In addressing this issue, Mr Luba has the easier task. Although both letters refer to section 177(1), neither of them makes any finding that it was not probable that Miss Bond would suffer domestic violence if she returned to or had stayed in 18 Appleby Close. Both letters concentrate principally on the steps she might have taken instead of moving out. Both conclude that it was reasonable for her to return.

21. Mr Arden correctly points out that decision letters such as these are not to be construed like statutes. Courts must start from the proposition that authorities know what they are doing and construe their words in that light. More importantly, he argues that the various steps which might have been taken to protect Miss Bond had she remained in the property were relevant to the question of whether (putting it loosely) she would have been at risk in remaining. Given that they were relevant, the authority should not be faulted for failing expressly to reach the statutory conclusion.

22. Both parties place some reliance on the legislative history and on the Secretary of State's Code of Guidance. Part VII of the Housing Act 1996 is the successor to the Housing (Homeless Persons) Act 1977 (later consolidated in the Housing Act 1985). Section 1(2)(b) of the 1977 Act provided that a person was homeless even if he had accommodation if it was probable that occupation of it would lead to violence (or threats of violence) from some other person living there. There was no statutory reasonableness test in the definition of homelessness and judicial attempts to introduce one were decisively rejected by the House of Lords in Puhlhofer v Hillingdon London Borough Council [1986] 1 AC 484. However, Parliament then acted to restore it. Section 14(2) of the Housing and Planning Act 1986 added section 58(2A) to the Housing Act 1985 in which the homelessness provisions had been consolidated. Thus, under the old law, there was already a distinction in the definition of homelessness between those who were at risk of domestic violence in the home and those who for other reasons could not reasonably be expected to continue to live there. Section 177(1) merely widened the scope of the domestic violence rule, incorporating risks from associated people not living in the same household and to other members of the applicant's household as well as the applicant herself.

23. However, the difference between the old law and the new lies in the way in which the risk of domestic violence is related to the reasonableness test, and the effect this has upon the definition of intentional homelessness. Section 17(1) of the 1977 Act was for practical purposes identical to section 191(1) of the 1996 Act (see paragraph 7 above). In R v London Borough of Wandsworth, ex parte Nimako-Boateng (1983) 11 HLR 98, Woolf J (as he then was) said this:

    'There are all sorts of protection that a woman can get if her husband misbehaves. The local authority could perfectly properly in many cases in this country take the view that it would be reasonable for the wife to continue to occupy accommodation and say to a wife, if she thinks it right:

    'If you are having trouble with your husband, go to the appropriate authority, be it a magistrates court or the Family Division, and get protection against your husband'.

    If the woman does not then take that course and chooses to leave, the authority could take the view that it was reasonable for the lady to remain.'

    That was not, however, a case of domestic violence. It was not argued that the lady was already homeless within the meaning of section 1(2)(b) of the 1977 Act. That argument was raised in R v Purbeck District Council, ex parte Cadney (1985) 17 HLR 534, but the authority found as a fact that the applicant was not at risk and Nolan J (as he then was) did not feel able to interfere with that finding on judicial review.

24. These cases are of no help to us now in applying section 177(1). Nimako-Boateng was concerned with the test of reasonableness at large. Had that been applicable here, this court might well have agreed with the observations of Woolf J quoted above. But neither in deciding upon homelessness or upon intentionality is the test of reasonableness at large in domestic violence cases. The only test is what is probable.

25. This in my view is a pure question of fact, devoid of value judgments about what an applicant should or should not do. If there are measures which have been taken or probably will be taken which will probably prove effective in preventing actual or threatened violence, then that may reduce the level of risk below one of probability. But those are the questions which the authority must ask themselves, rather than assume that such measures will be taken or will be effective if taken.

26. For what it is worth, it appears that the Secretary of State shares this view of the law. A new Code of Guidance accompanied the 1996 Act. Chapter 13 of that guidance is headed 'HOMELESS OR THREATENED WITH HOMELESSNESS'. A subheading above para 13.7 deals with 'Is it reasonable for the applicant to continue to occupy the accommodation?'.

27. This covers matters which may be taken into account when considering reasonableness at large, including at para 13.8(e), 'violence or threats of violence from persons not associated with the applicant.' This advises that

    'In some instances, the authority may advise an applicant to pursue any available legal remedies. This should not be done as a matter of policy but on the merits of an individual case and will need to take account of the need to ensure the proper safety of the applicant'.

    Another subheading above para 13.9 deals with 'Domestic Violence'. Para 13.10 includes the following:

    'The fact that violence has not yet occurred does not, on its own, suggest that it is not likely to occur. Authorities should not base their assessment of a likely threat of violence solely on whether there has been actual violence in the past. Injunctions ordering persons not to molest, or enter the home of, the applicant will not necessarily deter people and the applicant should not necessarily be asked to return to his/her home in this instance. Authorities may inform applicants of the option to take out an injunction, but should make it clear that there is no obligation to do so if s/he feels it would be ineffective.'

    Clearly, therefore, the Secretary of State considers that there should be no pressure to explore alternative remedies and the matter should be left to the applicant. A later consultation draft of the code went further and omitted the words 'if s/he feels it would be ineffective' altogether, thus reinforcing the view that the mere availability of such remedies does not answer the probability question.

28. I do not find this conclusion at all surprising. Taken to the extreme, it could mean that a probable victim of domestic violence, who had been offered every assistance available for her protection, could reject it and seek rehousing even if there was good reason to think that it would be effective. But Mr Arden acknowledges that even cases like the present one, in which the applicant had twice before fled from domestic violence, are rare. It will be rare indeed for a parent of children (for this is what gives her the priority need) to uproot herself from a situation in which legal or practical measures are not only on offer but likely to be effective. But the issues are issues of fact in the particular case.

29. To hold otherwise would leave it open to local authorities to put pressures upon the victims of domestic violence which fail to take account of some of its well known features. Once begun it is likely to be repeated, often with escalating severity. It induces a sense of shame and of powerlessness in the victims, who often blame themselves and find it impossible to escape. There are various legal and practical remedies available, but it is by no means easy for many victims to invoke these. However hard the family courts try, they are often ineffective. Escape may well be the only practicable answer. The victim is the one who knows the perpetrator best and is likely to be best able to judge this. It is not, after all, a decision to be lightly taken by a young mother of two young children.

30. The family courts also do their utmost to require parents with whom the children are living to arrange and encourage contact with the other parent. Only comparatively recently have we recognised that violence and threats towards the parent can have a damaging effect upon the children, such that it may constitute a good reason for refusing all contact. Even now, there is certainly no presumption to that effect. In those circumstances, it would be most unfair if one part of the system were to blame or penalise a mother for resuming contact with the father of her children, unless another part of the system has found that there should be no contact because it is harmful to them.

31. Whatever the facts of this particular case, therefore, I do not find it surprising that Parliament should have recognised a tendency in parts of the system to consider it reasonable to expect victims of domestic violence to do, or not to do, things which in reality place them in an almost impossible position; and that Parliament should therefore have enacted the clear rule in section 177(1).

32. Mr Arden raised another argument which depends upon the construction of the definition of intentional homelessness in section 191(1) (see paragraph 7 above). He accepts that the probability of domestic violence test in section 177(1) applies to the question of reasonableness in section 191(1) just as it does to the same question in section 175(3); but he argues that one can become homeless intentionally if one deliberately does or fails to do anything in consequence of which it becomes unreasonable to continue to occupy the property. Thus, he argues, a woman who knows what can be done and deliberately fails to do it may have caused the probability of domestic violence which makes her continued occupation unreasonable.

33. One answer to this is that it will be a rare case in which it can properly be said that the probability of domestic violence was the consequence of her failure to take action. More importantly, however, the words 'deliberately does or fails to do anything' clearly relate to the 'consequence' of ceasing to occupy the accommodation. The words 'which is available for his occupation and which it is reasonable for him to continue to occupy' simply describe the necessary characteristics of that accommodation.

    The outcome

34. Despite Mr Arden's valiant attempts to attach a different meaning to the authority's decision letters, and in particular the review letter of 9 August 2000, they did not clearly ask, let alone clearly answer, the right question. The authority therefore erred in law. On appeal, section 204(3) of the 1996 Act permits the county court and hence this court either to confirm, quash or vary the decision as it thinks fit. Mr Luba invites us to vary the decision by the insertion of the word 'not': had the authority asked the right question, the only possible conclusion would have been that it was probable that continued occupation of 18 Appleby Close would lead to domestic violence against Miss Bond, so that she was not intentionally homeless in leaving that address.

35. One certainly cannot reach the conclusion that, if the authority had addressed the right question they would have arrived at the same result. There was abundant material upon which they could have reached the conclusion that further domestic violence was probable if she stayed. There had been domestic violence in the past, such that she had twice before left her accommodation with two young children to escape it. There had been domestic violence in these very premises, it appears when he was reluctant to leave after visiting the family. Thereafter, although he had not forced his way into the premises, he had taken to sitting in the back garden, shouting and throwing stones at the windows. This pattern of behaviour is all too familiar to family judges. Many victims find it a great deal more frightening than the violence itself. The definition of domestic violence in section 177(1) includes 'threats of violence which are likely to be carried out'. 'Likely' is different from 'probable'. 'Probable' means 'more likely than not'. 'Likely' includes a real or serious possibility. Such behaviour may readily be held to constitute a threat of further violence which is likely to be carried out by a person who has not only done it before but shown a readiness to use it as a response to exclusion from the home. There was nothing to suggest that the applicant had a full understanding of what might be done to help her or that she would feel that it would be so effective that she would probably have sought such help if she had returned.

36. Hence it seems to me more likely than not that if the authority had asked themselves the right questions they would have reached the conclusion on the material before them for which Mr Luba contends. There would be little point in quashing the decision and sending it back for them to make it once more. If the order is instead varied, as sought, they will then be in a position to arrange accommodation which takes account of the problems in this case and thus reduces the probability of domestic violence in future. I would therefore allow the appeal and vary the decision to one that the applicant had not become homeless intentionally.

    MR JUSTICE DAVID STEEL:

37. I agree.
    Order: Appeal allowed; community legal service fund assessment of appellant's costs (Order does not form part of the approved judgment)