While my NL colleagues are off partying at a secret location for lunch, I’ve managed to steal a few precious minutes from an appallingly tight deadline (Sinead: if you’re reading this, it’ll be there, honest) to write a paean of praise in honour of Baroness Hale’s judgment in this case. It is quite simply, as NL has put it, Baroness Hale at the top of her game; a brilliant, tightly argued, academic but practical, rich and deep appreciation of homelessness law and its underlying philosophy (cf the “provocative” approach taken by the Daily Mail in their, ahem, “interesting” comment on the case – more of which, possibly, later). Her judgment in Yemshaw provides the principal justification for the reams of academic literature that now exists about her (rather than written by her).
The background to Yemshaw has been covered by NL (here), which was concerned with the Court of Appeal judgment. The issue for the Supreme Court was the definition of “violence” in s 177(1), Housing Act 1996, for the purposes of the definition of homelessness. The Court of Appeal considered themselves bound by Danesh v Kensington and Chelsea RLBC  EWCA Civ 1404, despite the fact that the Code of Guidance had defined “violence” more broadly, but, in any event, they rather agreed with the narrow take on “violence” in Danesh.
In the Supreme Court, the actual outcome was that violence is to take the same meaning as in the family law context: “‘Domestic violence’ includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm” (Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2)  1 WLR 251, at , emphasis added; Yemshaw, at ). Baroness Hale (with whom Lords Hope and Walker agreed) gave the leading judgment; Lord Rodger gave a concurring judgment, out of deference to the CA; and Lord Brown doubted the result but, in the oddest final paragraph, basically said that he didn’t care enough to dissent (“At the end of the day, however, I do not feel sufficiently strongly as to the proper outcome of the appeal to carry these doubts to the point of dissent. I am content that the views of the majority should prevail and that the appeal should be allowed”: ).
Baroness Hale made clear that the question for the local authority (following on from Birmingham CC v Ali – our note here) is essentially about the future, ie the probability of the acts continuing in the future (“This is the limiting factor. Sections 177 and 198 are concerned with future risk, not with the past”: ). Further:
I accept that these are not easy decisions and will involve officers in some difficult judgments. But these are no more intrinsically difficult than many of the other judgments that they have to make: …. Was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband; or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider? This is not to apply a subjective test (pace the fifth reason given in Danesh). The test is always the view of the objective outsider but applied to the particular facts, circumstances and personalities of the people involved. (at )
My suggestion is that, just as the Holmes-Moorhouse paragraphs pop up in practically all local authority skeleton arguments, this paragraph is likely to be in most appellants. Homelessness decision-making is a difficult job, but it has to be done.
Although Baroness Hale made it look relatively easy, this result was rather more difficult to achieve (as is clear from Lords Rodger and Brown’s judgments). It required deft footwork, using the history of the homelessness legislation, method of statutory interpretation adopted in Fitzpatrick v Sterling HA  1 AC 27, combined with “modern” understandings of domestic violence. The interpretation meant that the phrase “domestic violence” in section 177(1) is left virtually redundant (a historical vestige, in essence – see the quizzical discussion at -) and, it is to be noted the ambit of the phrase “other violence” in section 177(1) (as amended) was unclear and left open (Baroness Hale could see both sides of the argument: ; note to self – one for the future). Anyway, starting from the top …
As Baroness Hale pointed out (at -), the definition of “violence” is an important question because of its “deeming” or “passporting” effect – that is, a person falling within this definition will not only be found homeless but will also be found not intentionally homeless (and will affect the ambit of the local connection provision). Its parameters, then, are crucially important. Baroness Hale traces the rather tawdry history of section 177(1) back to the inane distinction that used to be drawn between violence inside and outside the home; and the proviso that local authorities are entitled, in exercising their decision-making on homelessness and intentionality, in relation to reasonableness, to have regard regard “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” (now s 177(2)). As regards the latter, Baroness Hale suggests that “this strongly suggests that regard may be had, not only to the quality of housing available locally, but also to the quantity” (at ; on which Ian Loveland’s academic work from the early 1990s is interesting by the way).
The history of the “deeming” provision enabled Baroness Hale to make a number of points about section 177, as original drafted. She notes, first, that it expressly includes violence against other members of the household; and second, that it was not limited to violence from someone living in the same accommodation but covered violence from an “associated person” (see s 178). Those changes, though, did not alter the underlying, fundamental purpose.
The development of policy and family law understandings about “domestic violence” were also relevant to the discussion, and Baroness Hale brilliantly interweaves that development with homelessness law. So, after tracing the development of the family law approach, she notes that “it cannot be a coincidence” that the definition of an associated person in section 178 closely resembles that in the Family Law Act 1996 (at ); and
All of this indicates a consciousness in 1996 of the need to align housing, homelessness and family law remedies for victims of domestic violence, so that they could have a genuine choice between whether to stay and whether to go and the local authority or social landlord would not be obliged to continue to provide family sized accommodation to the perpetrator. There was also an explicit acknowledgement in the report which led to the Family Law Act 1996 and by the Home Affairs Committee that “violence” could have a wider meaning than physical contact. (at )
This tracing process led Baroness Hale to the Fitzpatrick approach to statutory interpretation. In essence, some statutes are to be read as “living law”, ie interpreted by reference to their current meaning as opposed to the meaning which they might have had at the date on which they came into force: “The essential question … is whether an updated meaning is consistent with the statutory purpose” (at ). What were the statutory purposes:
In this case the purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere. (at )
Those purposes would be achieved if the court adopted the family law definition of violence. Further, that interpretation was not inconsistent with the statutory provisions in Part 7. Yes the Secretary of State has a power to include other forms of ill-treatment falling short of actual violence within s 177(1), but that had not been done because the SoS already believed that the word bore that wider meaning. If there was concern that the threshold was being set too low, Baroness Hale observed (and, in doing so, drew on her family law knowledge as well as brilliantly undercut any potential dissent):
The advantage of the definition adopted by the President of the Family Division is that it deals separately with actual physical violence, putting a person in fear of such violence, and other types of harmful behaviour. It has been recognised for a long time now that it is dangerous to ignore what may appear to some to be relatively trivial forms of physical violence. In the domestic context it is common for assaults to escalate from what seems trivial at first. Once over the hurdle of striking the first blow, apologising and making up, some people find it much easier to strike the second, and the third, and go on and on. But of course, that is not every case. Isolated or minor acts of physical violence in the past will not necessarily give rise to a probability of their happening again in the future. (at )
It’s just brilliant stuff. Lord Rodger’s concurring judgment looks like it could have been written 30 years ago by contrast. Lord Brown – well, read it and see what you think. it’s not uninteresting in terms of the value judgments he is making (see especially  where he draws a distinction between the urgency in actual violence cases as opposed to those “subject to psychological abuse”).
Right, back to that deadline … (oh, and hope the rest of you NLers enjoyed the long, luscious lunch – not that I’m jealous or anything)