This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Violence from any person

This content applies to England

When it is not reasonable to continue to occupy accommodation because of the probability of violence.

Not reasonable to occupy

An applicant must be treated as homeless if it is not reasonable for her/him to continue to occupy accommodation because it is probable that this will lead to domestic violence or other violence directed against the applicant, or someone who lives with or might reasonably be expected to live with her/him.[1]

The effect of this provision is that a person at risk of violence is automatically homeless, regardless of availability and legal rights to occupy accommodation, and cannot be treated as intentionally homeless (for more information see the Intentional homelessness section).

Violence and domestic violence

Local authorities must take account of the cross-government definition of domestic abuse and violence when determining if a person is homeless.[2] See Definition of domestic violence in the Relationship breakdown section from more on this.

Violence means:[3]

  • violence from another person, or
  • threats of violence from another person which are likely to be carried out.

The Court of Appeal held that the word 'likely' means a real or serious possibility.[4]

The term 'violence' (whether domestic or other violence) should be interpreted in a broad way to include not just physical violence, but also threatening or intimidating behaviour, and any other form of abuse which is aimed at the applicant and is of such seriousness that it, directly or indirectly, may cause physical or psychological harm.[5] Psychological harm connotes something more than 'transient upset or distress'.[6]

Conduct that is merely anti-social, however persistent or frequent, is not equivalent to 'violent' behaviour. The threshold at which threatening or intimidating behaviour may be held to be 'violent' is when it is liable to make the victim afraid, as opposed to merely upset or offended. Where a woman's neighbour subjected her to prolonged and extreme racial abuse, regularly spat at her, and on one occasion made a 'throat slitting' gesture while saying 'watch what I'm going to do', the fact that there was no physical violence was not sufficient to justify the council's decision that she was not homeless.[7]

The Homelessness Code of Guidance confirms the case law by stating that 'violence' should not be given a restrictive meaning'. Domestic violence can include threatening behaviour, violence or abuse, whether it be psychological, physical, sexual, financial or emotional.[8]

The phrase 'whether it is reasonable to continue to occupy' means the legislation is concerned with future risk. As such a random act of violence near the home might not mean that the applicant would qualify, although if s/he was traumatised by remaining in the area, eg where a rape had occurred, it might be deemed that it was not reasonable for her/him to continue to occupy under the general test.[9]

Domestic violence

Section 177 of the Housing Act 1996 refers to both domestic violence and other violence. The courts have held that the term violence should be interpreted in the same broad way as in the family law context.[10]

Domestic violence is a sub-category of violence and means violence or threats of violence from a person associated with the victim.[11]

A person is associated with another person if s/he:[12]

  • is/was married
  • has/had a civil partnership with her/him
  • cohabits or used to cohabit (this means a couple living together as husband and wife or if of the same sex as if they were civil partners)[13]
  • lives or has lived in the same household
  • is a relative of the person or her/his spouse or former spouse or or civil partner or cohabiting partner. 'Relative' means parent, step-parent, child, step-child, grandparent or grandchild, or brother, sister, uncle, aunt, niece, or nephew, whether full or half blood or by affinity
  • has/had agreed to marry or enter into civil partnership
  • is the parent of or has/has had parental responsibility for a child.

Where a child has been adopted or 'freed' for adoption (eg a court has decided that the child can be adopted), two people will be associated if:

  • one is the natural parent or grandparent and the other is the child, or
  • one is the natural parent or grandparent and the other is the adoptive parent or someone whom the child has at some time been placed with for adoption.

Inquiries

A local authority must address the question as to whether the applicant is homeless because violence is probable if s/he remains in the home. The local authority cannot avoid its duty to carry out inquiries under the Housing Act 1996 by reference to other measures, such as injunctions, that might be open to the applicant. Case law has established the following points:

  • the correct legal test in cases involving violence is for the authority to ask only if it is probable that further occupation will lead to violence or threats of violence that are likely to be carried out
  • the authority cannot make value judgements about what an applicant should or should not have done
  • the mere availability of injunctions in cases of violence cannot make it reasonable to continue to occupy the accommodation.[14]

The Code of Guidance states that applicants may be informed of the option to seek an injunction but that such action may not be effective, and an applicant should not normally be expected to return home on the strength of an injunction.[15] It also suggests that a local authority consider improving the security of the applicant's home, where the applicant wishes to continue living there safely, but stresses that where there would be a probability of violence the authority must treat the applicant as homeless and should not expect her/him to return to the accommodation.[16]

The authority should also avoid making judgements about what the applicant could do, or could have done, to mitigate the risk of violence, eg an applicant should not be refused help because they have not sought help from the police.[17]

Proof of violence not required

Nothing in the legislation requires an applicant to provide proof of violence. The 1996 Act refers to violence or threats of violence that are likely to be carried out.[18] The Code of Guidance makes the point that the likelihood of a threat of violence being carried out should not be based on whether there has been violence in the past.[19]

The authority should recognise that in some cases corroborative evidence may not be available, eg because there were no adult witnesses to the violence.[20] Case law has established that a local authority does not have to carry out police-style inquiries.[21] If there is no evidence or corroboration available, as is often the case in domestic violence cases, the applicant must be given the benefit of the doubt and accepted as a homeless person.[22]

Relationship breakdown

Neither the 1996 Act nor the Code makes any reference to situations where a relationship breaks down but no violence (in the widest sense of the definition - see below) is involved. In such a situation it would be necessary to argue that the authority should consider whether it would be reasonable to expect the applicant to remain in the home if the stresses and strains were too great.[23]

However, in such cases it is open to the authority to suggest alternatives and be influenced by the general housing circumstances in the area. In one case, where a woman said her husband was not violent but had treated her badly, the court accepted that the authority could suggest the use of legal remedies.[24] In another case the applicant was found not to be at risk and therefore not homeless.[25]

Applications made before 3 April 2018

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.

[1] s.177(1) Housing Act 1996.

[2] para 21.3 and 21.4 Homelessness Code of Guidance, MHCLG, Feb 2018.

[3] s.177(1A) Housing Act 1996.

[4] Bond v Leicester CC [2001] EWCA Civ 1544.

[5] Yemshaw v Hounslow LBC [2011] UKSC 3; Hussain v Waltham Forest LBC [2015] EWCA Civ 14.

[6] Hussain v Waltham Forest LBC [2015] EWCA Civ 14.

[7] Hussain v Waltham Forest LBC [2015] EWCA Civ 14 paras 30-32.

[8] para 21.19 Homelessness Code of Guidance, MHCLG, Feb 2018.

[9] s.175(3) Housing Act 1996.

[10] Yemshaw v Hounslow LBC [2011] UKSC 3, and Hussain v Waltham Forest LBC [2015] EWCA Civ 14, by reference to Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251.

[11] s.177(1A) Housing Act 1996.

[12] s.178 Housing Act 1996, amended by Sch.8 Civil Partnership Act 2004.

[13] s.178(3) Housing Act 1996.

[14] Bond v Leicester CC [2001] EWCA Civ 1544.

[15] para 21.30 Homelessness Code of Guidance, MHCLG, Feb 2018.

[16] para 21.28 Homelessness Code of Guidance, MHCLG, Feb 2018.

[17] para 21.20 Homelessness Code of Guidance, MHCLG, Feb 2018.

[18] s.177(1A) Housing Act 1996.

[19] para 21.20 Homelessness Code of Guidance, MHCLG, Feb 2018.

[20] para 21.21 Homelessness Code of Guidance, MHCLG, Feb 2018.

[21] Lally v Kensington and Chelsea RBC (1980) The Times 27 March, ChD.

[22] R v Thurrock BC ex parte Williams (1981) 1 HLR 129, QBD.

[23] s.175(3) Housing Act 1996.

[24] R v Wandsworth LBC ex parte Nimako-Boateng (1983) 11 HLR 98, QBD.

[25] R v Purbeck DC ex parte Cadney (1985) 17 HLR 534, QBD.

Back to top