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Probability of violence and dates of actions


LB v London Borough of Tower Hamlets (2020) EWCA Civ 439

A second appeal on a homelessness review, where a finding of intentional homelessness had been upheld, raising an important point on whether events or factors post-dating the decision or action that led to eviction need to be considered on review.

Ms LB had been evicted from a private tenancy in November 2016. She had applied to Tower Hamlets as homeless. Tower Hamlets found that she was evicted for rent arrears and held her intentionally homeless. On review and in the subsequent appeals, Ms LB raised evidence that she had been subjected to domestic violence and harassment from her former husband and argued that it was therefore not reasonable for her to have remained at that property.

Housing Act 1996 provides, at s.191 and s.177:

“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.”

Section 177(1) and (1A):
“(1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other 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:
(c) violence from another person; or
(d) 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 question in the appeal was

whether, with the background of rent arrears and the Appellant’s eviction from her former accommodation for that reason, it would not have been reasonable for her to continue to occupy that property because it was probable that occupation would lead/have led to domestic violence or other violence against her and/or her children.

The s.204 appeal had upheld the review decision, and Ms LB appealed to the Court of Appeal.

A brief history. Ms LB had a private tenancy. She had lived there with her three children and the husband, C.

The Appellant and C had married in 2000. The marriage broke down in 2015; there had been some domestic violence at that stage and C vacated the property. C went for a time to the United States, but he returned not long afterwards. On 5 May 2015 he returned to the property and barricaded himself in with the children. The police were called; they forced entry and removed C from the premises. A non-molestation order (“the First NM Order”) was made against C on 6 May 2015 for a period of 12 months. The order prohibited C from using or threatening unlawful violence towards the Appellant or coming within 100 metres of the premises or the school/nursery which the children attended; he was also restrained from communicating with the Appellant by letter, text message or otherwise, except through solicitors. The order was varied in August 2015 to permit visits to the school, within certain limited parameters.

In April 2016, Ms LB had approached Tower Hamlets, saying that she was in arrears of rent following a change in housing benefit and she had had notice from the landlord. In August 2016 a possession order was made, to take effect on 2 September 2016. A warrant was executed on 2 November 2016. At this point Ms LB and children were put in temporary accommodation, pending s.184 decision.

There were two subsequent non-molestation orders made against C after he threatened and abused Ms LB and gone to the children’s school to try to see them on two occasions, the second incident being referred to the police.

In the first review request, Ms LB (via an advice centre) referred to the domestic violence in the following way:

“7. Furthermore, the caseworker did not take account of my mental state at the time. I was in an abusive relationship for many years. I only managed to report my ex-husband after years of abuse and with the help of friends who called the police on my behalf. After, he was removed from the property he was still harassing me and the kids. During this time I was in contact with Latin American Women’s Rights Services (LAWRS) who were assisting me with further non-molestation orders as I could not afford a solicitor. This information was not considered, and it should have been as it influenced my actions and my decision making ability.

8. I was forced to change jobs as my ex-husband was following me. I was also advised by the Family Court to do so. Given the urgency of the matter undertaking a dental nurse course was the only course of action I saw fit at the time. It was what I needed to do for my safety and that of my children. Not only was this the first job offer I received, but it also provided long term job security. …

12. When I called the police on my husband on 05 May 2017 [sic], they had to break the door down as he locked himself in the property with the children. The cost of replacing the door was estimated to be £1,000 which I could not afford. After this incident the letting agents attitude changed. They, on numerous occasions, attempted to convince me to go to the Council and ask for help to move from the property. They wanted me to move out at any cost. I feel that this influenced their stance when it came to negotiating a payment plan.”

The initial review decision upheld the s.184. Ms LB obtained solicitors who challenged this on the basis that it did not deal adequately with the issue of domestic abuse and s.177 HA 1996. The council was invited to withdraw the decision and make a fresh one, which the council agreed to. In further representations (by an advice centre, not the solicitors) it was highlighted that C had breached all three non-molestation orders and had been physically violent to Ms LB. The review officer also contacted the police for information on the breach of the non-molestation orders and the risk to Ms LB.

The review decision upheld the intentional homeless finding and addressed the domestic violence as follows:

“In your letter dated 03/08/18 you argue that C has breached all three molestation orders that (the Appellant) has obtained and has previously been physically violent towards her. I note that you have highlighted an instance in which (C) barricaded himself in the property at (the former property) and the door had to be broken down by the police. I note that you have advised that this took place in May 2017 however from the information available to me from (the Appellant) this incident took place in 06/05/15. I note that (the Appellant’s) first non-molestation was issued on 12/05/15 after this incident. Following this instance there is no evidence to suggest that (C) attended (the former property) again. I note that you have advised of several instances of violence committed by (C) against (the Appellant), however you have not stated whether these took place prior to the non-molestation orders being issued. There is nothing to corroborate that (the Appellant) has been a victim of violence or threats from her ex-partner since the non-molestation orders have been issued. I find it difficult to believe that (the Appellant) would have failed to report such an instance of physical violence to the police considering the historical violence. As noted from my correspondence with Detective Jo Varley, the only breaches reported were (C’s) attendance at his children’s school and letters (the Appellant) states he wrote to her at her current temporary accommodation.

In consideration of the above I am not satisfied that there was a risk to (the Appellant) at her (the former property). There is nothing to suggest that following the issuing of the non-molestation orders (C) threatened (the Appellant), or physically assaulted her or her children at this property. I also note the reason (the Appellant) left her accommodation at (the former property) was due to rent arrears and not as a result of the risk of violence to her at this accommodation. She resided at (the former property) until she was evicted in November 2016. Prior to her eviction upon her initial approach to our service she was working with our service to not only look for alternative accommodation but attempt to negotiate with her landlords to remain at [the former property]. You have in your representations argued that [the Appellant] was open to a repayment plan, which would again go to confirm that she would have been happy to remain in this property. Therefore I am not satisfied that (the Appellant) was at risk of continued violence at her property … or that it was unreasonable for her to reside in.”

The review decision was upheld on s.204 appeal.

Before the Court of Appeal, Ms LB argued that

“The learned judge was wrong to reject the Appellant’s ground of appeal that the Respondent misdirected itself in law by assessing only the probability of domestic violence occurring at the Appellant’s former home had she continued to live there. The learned Judge’s dismissal of the said ground of appeal was based on a further misdirection, namely that the test in s.177(1) Housing Act 1996 is whether the risk of domestic violence was probable on the day that the applicant left her former home or was in any event plainly wrong.”

The Court of Appeal notes that what is actually at issue in the appeal is the lawfulness of the s.202 review decision, and that must be the focus.

The first issue is what periods for probability of violence (under s.177 and for the purposes of s.191) fall to be considered in a review decision in such a case. Is it simply up to the date of the act/failure to act that led to the loss of accommodation, or up to the point of the review decision?

Denton v Southwark LBC (2007) EWCA Civ 623 (Reference incorrect in judgment. Our note here) found that the reasonableness of continued occupation was to be determined at a point of time before the deliberate act which led to the loss of accommodation took place. However, Denton did not directly concern s.177. Moreover Mohammed v Hammersmith and Fulham LBC (2001) UKHL 57 suggested that the reviewing officer should not limit the review by reference to circumstances existing at the date of the deliberate action or inaction alone, but by reference to all the circumstances before that date and matters thereafter up to the date of the review.

Moreover, in Haile v Waltham Forest LBC [2015] UKSC 34 “the Supreme Court held that in assessing whether a deliberate act had caused homelessness, there had to be a continuing causal connection between the act and the homelessness existing at the date of the inquiry; the authority had to consider that question by reference to facts that had occurred after the deliberate act in question”.

The upshot is that:

while the question of whether it was reasonable for a person to continue to occupy premises which he or she had ceased to occupy deliberately is to be assessed at or about the time of the act in question, the assessment needs to be informed by all relevant matters, including events that may occur up to the date of the authority’s review decision.

In the present case, therefore, in deciding whether or not it was reasonable for this Appellant to have continued to occupy her old accommodation, instead of ceasing to do so deliberately by not paying the rent (and ignoring the non-payment of rent for this purpose), the authority had to consider whether it was probable that this would have led to violence. It could not ignore evidence from events up to the time of review, informing it as to whether violence would have been probable or not.

However, when turning to the actual review decision:

it is quite clear that in making the enquiries leading to the review decision the RO tried to find out from the police as much as she could about events following the eviction and about the observance (or otherwise) of the NM Orders by C, whether at the old property or otherwise. She had knowledge of the Second and Third NM Orders. She discovered the breach alleged to have occurred in May 2017, concerning attendance at the school and the decision of the CPS not to prosecute. She heard about the Appellant’s complaint of a further breach in January 2018 and was told that the Appellant had failed to report that matter at the police station as advised. She was told by the police officer responsible that there was always a risk from C but that it was not possible to assess the level of the risk either at the old property or at the temporary accommodation provided by the Respondent. The Island Advice Centre in its last letter referred to other incidents, but without any specific details or dates. The only specifics mentioned were those of May 2017 and January 2018 relating to C’s attendance at the school, the second of which had not been pursued by the Appellant herself. In considering the arguments raised by Island Advice, the RO saw that they had understood that the incident of May 2015 had occurred in May 2017. This error was pointed out in the review decision letter.

Giving the review decision a fair reading, I consider that the RO was endeavouring to express her assessment of the risk to the Appellant as a result of continuing to live at the old property. She was not confining herself solely to incidents that might occur physically at the old property. Any such impression is countered by the extent of her enquiries with the police and the contents of the “minded to” letter of 19 July 2018. She was also having proper regard to the nature of the events which were said to have occurred and the absence of evidence of further significant breaches of the NM Orders pursued by the Appellant. That is not to ignore the complaints actually made about the two attendances by C at the school.

Appeal dismissed.


Although it did not assist Ms LB, there is an important practice point here, particularly where there are issues of domestic violence and potential intentional homelessness.

Whether it is reasonable to continue to occupy accommodation for the purposes of s.177 does not just fall to be assessed on events pre-dating the end of the accommodation, but also on consideration of a subsequent history, up to both s.184 decision and review decision.

This must be factored in to any decision on intentional homelessness, where there is previous and subsequent domestic violence (or other violence).

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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