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05/07/2021

Domestic Abuse and Priority Need

After assorted rumours, it was officially announced that section 78 Domestic Abuse Act 2021 came into force today, (Monday 5 July 2021), although the regulations bringing it into force weren’t actually published until about 4.30 pm (I was hunting for them).

What this means is that as of today, a person who is homeless as of result of domestic abuse against them is in priority need for the purposes of Part VII Housing Act 1996. (And ‘domestic abuse’ has replaced ‘domestic violence’ throughout Part VII). This is unarguably a good thing, where previously domestic violence made it not reasonable to remain for the purposes of being homeless, but was not by itself sufficient to establish vulnerability and hence priority need.

Here are the key changes:

First. sections 1 and 2 Domestic Abuse Act 2021, for the definition of ‘domestic abuse’ and the meaning of ‘personally connected’:

1 Definition of “domestic abuse”

(1) This section defines “domestic abuse” for the purposes of this Act.

(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if—

(a) A and B are each aged 16 or over and are personally connected to each other, and

(b) the behaviour is abusive.

(3) Behaviour is “abusive” if it consists of any of the following—

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour;

(d) economic abuse (see subsection (4));

(e) psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.

(4) “Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to—

(a) acquire, use or maintain money or other property, or

(b) obtain goods or services.

(5) For the purposes of this Act A’s behaviour may be behaviour “towards” B despite the fact that it consists of conduct directed at another person (for example, B’s child).

(6) References in this Act to being abusive towards another person are to be read in accordance with this section.

(7) For the meaning of “personally connected”, see section 2.

2 Definition of “personally connected”

(1) For the purposes of this Act, two people are “personally connected” to each other if any of the following applies—

(a) they are, or have been, married to each other;

(b) they are, or have been, civil partners of each other;

(c) they have agreed to marry one another (whether or not the agreement has been terminated);

(d) they have entered into a civil partnership agreement (whether or not the agreement has been terminated);

(e) they are, or have been, in an intimate personal relationship with each other;

(f) they each have, or there has been a time when they each have had, a parental relationship in relation to the same child (see subsection (2));

(g) they are relatives.

(2) For the purposes of subsection (1)(f) a person has a parental relationship in relation to a child if—

(a) the person is a parent of the child, or

(b) the person has parental responsibility for the child.

(3) In this section—

“child” means a person under the age of 18 years;
“civil partnership agreement” has the meaning given by section 73 of the Civil Partnership Act 2004;
“parental responsibility” has the same meaning as in the Children Act 1989 (see section 3 of that Act);
“relative” has the meaning given by section 63(1) of the Family Law Act 1996.

Section 2 is worth noting as it wholly replaces s.178 Housing Act 1996 in effect (see below)

Then these are the amended elements of Part VII Housing Act 1996, with the amendments in my italics.

177 Whether it is reasonable to continue to occupy accommodation.

(1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to violence or domestic abuse 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—

(a) “domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;

(b) “violence” means—

(i) violence from another person; or

(ii) threats of violence from another person which are likely to be carried out.

(2) In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, 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.

(3) The Secretary of State may by order specify—

(a) other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation, and

(b) 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.

178 Meaning of associated person.

(Omitted completely – in practice now replaced by section 2 Domestic Abuse Act 2021)

 

189 Priority need for accommodation.

(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.

(e) a person who is homeless as a result of that person being a victim of domestic abuse.

(2) The Secretary of State may by order—

(a) specify further descriptions of persons as having a priority need for accommodation, and

(b) amend or repeal any part of subsection (1).

(3) Before making such an order the Secretary of State shall consult such associations representing relevant authorities, and such other persons, as he considers appropriate.

(4) No such order shall be made unless a draft of it has been approved by resolution of each House of Parliament.

(5) In this section “domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021.

198 Referral of case to another local housing authority.

(A1) If the local housing authority would be subject to the duty under section 189B (initial duty owed to all eligible persons who are homeless) but consider that the conditions are met for referral of the case to another local housing authority in England, they may notify that other authority of their opinion.

(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

(2) The conditions for referral of the case to another authority are met if—

(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,

(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic abuse in that other district.

(2ZA) The conditions for referral of the case to another authority are also met if—

(a) the application is made within the period of two years beginning with the date on which the applicant accepted an offer from the other authority under section 193(7AA) (private rented sector offer), and

(b) neither the applicant nor any person who might reasonably be expected to reside with the applicant will run the risk of domestic abuse in the district of the other authority.

(2A) But the conditions for referral mentioned in subsection (2) or (2ZA) are not met if—

(a) the applicant or any person who might reasonably be expected to reside with him has suffered violence (other than violence that is domestic abuse) in the district of the other authority; and

(b)it is probable that the return to that district of the victim will lead to further violence of a similar kind against him.

(3) For the purposes of subsections (2), (2ZA) and (2A)—

(a)“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;

(b)“violence” means—

(i)violence from another person; or

(ii)threats of violence from another person which are likely to be carried out.

And lastly, an amendment to article 6 of The Homelessness (Priority Need for Accommodation) (England) Order 2002

Vulnerability: fleeing violence or threats of violence

(1) A person who is vulnerable as a result of ceasing to occupy accommodation by reason of violence from another person or threats of violence from another person which are likely to be carried out.

(2) For the purposes of this article—

(a) “violence” does not include violence that is domestic abuse;

(b) “domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021.”

Comment

While this is unlikely to stop local authorities from behaving badly in respect of domestic abuse victims making homeless applications – after all, some councils were quite capable of sending the victim back to the home in which they were facing domestic violence before this change, even though it was clearly not reasonable to remain – it is a very positive step forward for ensuring that victims of domestic abuse receive proper homelessness housing support. It is to be welcomed.

Section 2 of the DA Act replacing s.178 HA 1996 is also a good thing, as it extends the list of ‘connected’ people to having been in intimate  personal relationship.

Now, if only councils were funded sufficiently for the increase in housing duties…

 

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.

8 Comments

  1. Ron Platt

    The “relationship” definitions do not include “Landlord(s) and/or their agents”. A serious omission?

    Reply
    • Giles Peaker

      Well no. That isn’t domestic. And covered by much else.

      Reply
  2. Phill Warren

    Yes indeed re: the comment on funding, The majority of councils received the grand total of £0.00 in new burdens funding for this quite significant change to part 7. Those that did receive funding only received a very small amount.

    We anticipate (and have already seen) an increase in single men approaching as a result of DA, and were keen to establish a specialist project in acknowledgment that there is woefully little provision for this group across the country. That will now not be possible.

    MHCLG acknowledged that councils had an appetite to increase specialist provision, saying in their funding response “Housing authorities also suggested that more expensive single sex accommodation may need to be sought as a result of the changes, for example male refuges. Data is not available on the type of specific accommodation offered to victims, meaning that this cannot be built into the assessment.”

    That second sentence is quite a bizarre statement. Prior to now, male victims were not likely to approach a local authority because they probably wouldn’t have passed the vulnerability test and knew there was very little provision for them. That does of course create difficulty in providing data on approaches you havent had, for refuges that aren’t there.

    However had the Ministry really wanted to plan for the future demand the DA Act will create and engaged with us about it, local authorities would have been able to supply plenty of detailed data about what accommodation is currently offered, and what it would cost to expand and improve this. That would, however, have then meant funding it. I guess its much easier to say the data isn’t there than to ask for help in finding it.

    Reply
  3. Ron

    Apologies for perpetuating this. It is when one’s Landlord attempts to force her/his/its way in and attempts to assault only to be stopped by a more serious defense and, then, dials 999 claiming to have been (seriouslly) injured but when asked if he/she/it needs an ambulance responds no. Police arrive, arrest tenant on ABH suspicion, Landlord standing grinning/smiling and the tenant is released 13 hours later charged with common assault. At trial, Landlord and only witness conspicuous by her/his/its absence. 4 attempts made to contact her/him/it. Case dismissed. 12 years later, alleged Landlord obtains eviction order claiming that he/she/it was (seriously) injured and still Landlord. According to LR, Daughter is Landlord. Unfortunately, victim did not have legal support because retired and receiving Pension & Pension Credit.

    Reply
    • Giles Peaker

      It isn’t domestic abuse. And we can’t comment on individual matters.

      Reply
  4. Mike

    The amendment to s189(e) a person who is homeless as a result of that person being a victim of domestic abuse. Does this apply only to applications made after 5 July, or does it also apply to applicants applying before that date, but the decision is made after 5 July?

    Reply
  5. chief

    I would say the latter as there is no transitional provision preserving the old legislation for applications made before 5th July (cf. Homelessness Reduction Act where the commencement SI specifically stated that the new legislation did not apply to applications made before the commencement date (3rd April 2018, I think)), even though s.86 of the 2021 provides a power to make transitional provisions in respect of s.78.

    Reply
    • Giles Peaker

      I thought I’d replied to the comment, but apparently not. Yes, I agree.

      Reply

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