Yemshaw v Hounslow LBC (2009) CA (Civ Div) 15/12/2009 [only as Lawtel note so far]
This was an appeal to the Court of Appeal from a s.202 appeal on the issue of what ‘violence’ in s.177(1) Housing Act 1996 meant. S.177(1) provides that it is not reasonable to remain in accommodation where the person has been subject to violence or the threat of violence.
Ms Y claimed that she had to abandon the family home with her children because of her husband’s abusive behaviour. She stated that, although her husband had not physically assaulted her, she had been subjected to emotional, psychological and financial abuse. Housnlow found that this was not sufficient to amount to violence under s.177(1) and that it as therefore reasonable for her to remain. This was upheld on review and appeal, following Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404.
At the Court of Appeal, with the Secretary of State for Communities and Local Government intervening, Ms Y argued that Danesh had been decided in view of the Homelessness Code of Guidance for Local Authorities 2002, which supported the definition of violence as involving physical contact. However, the 2006 guidance widened the scope of violence to include other non-physical forms of abuse. The Secretary of State supported this view. Ms Y argued that the Court had a statutory duty to consider the Guidance and on that basis, Danesh would have been decided differently today. A more flexible approach to the definition of the term by the courts was consistent with a purposive approach to social legislation designed to reflect society’s changing values.
Held:
Danesh was not decided per incuriam.
Y overstated the importance of the codes. While the court was obliged to have regard to them under s.182 Housing Act 1996, they were no more than persuasive authority. Nothing in s.182 or the Act meant that ‘violence’ had the meaning that the Secretary of State may ascribe to it from time to time.
If the Secretary of State wished to introduce new circumstances that would mean it was not reasonable to remain, there was a mechanism in s.177(3) for doing so. As this mechanism existed, the court should be hesitant in accepting that the meaning of a word had changed over time.
Continuing to follow Danesh to define violence as physical abuse would not stultify social attitudes to domestic violence.
A wider definition would in any event lead to practical difficulties for Local Authorities, who would have to make subjective judgments on applicant’s circumstances, which would be inconsistent with the straightforward requirement under s.177(1).
I wonder if we will see the s.177(3) mechanism exercised soon? I’m not going to hold my breath.
So we’re back to looking for the blood and bruises……..
Well – we’re in the same position that we were in 2006 when Danesh was decided.
Were Hale LJ’s remarks – re behaviour that is often more frightening than the physical violence itself ,in Bond-v-Leicester CC (2001) cited ? They do not appear to have been in Danesh.
An application to the SC seems to be in order
I agree with you on this one. I’d probably try and push it to the Supreme Court. I suspect that Lady Hale would be persuaded to overturn Danesh!
I did run an appeal that Danesh should not be followed for failing to follow Hale’s dicta in Bond rather than the Code but the LA conceded so I was interested to see how the argument was run in this case.
Permission to appeal was granted by the Supreme Court on 15th June.
Due to be heard on 2nd December – Hope, Rodger, Walker, Hale & Brown.
Lo and behold, a transcript has popped up on BAILII
Judgment due on 26th January.
We wait with baited breath.
Out of interests, had anyone come accross a Council trying to use this in any decisions or in refusing applications?
Judgement availible now
http://www.supremecourt.gov.uk/docs/UKSC_2010_0060_Judgment.pdf
Common sense prevails it would seem… I look forward to a more detailed post and the thoughts of those at NL HQ.
I think it is the right result, but reaching it wasn’t easy. Detailed post to follow.