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Homelessness and domestic violence

Andy Lane and Rowan Clapp examine government proposals of support for survivors of domestic violence who are facing homelessness.

The change

Thanks to the efforts of bodies such as Crisis, Women's Aid and the All-Party Parliamentary Group on Domestic Violence and Abuse, on Saturday 2 May 2020 the Secretary of State for Housing, Communities & Local Government, the Rt Hon Robert Jenrick MP, announced a series of measures to assist "survivors of domestic abuse, sexual violence and modern slavery as well as ensuring vulnerable children and young people continue to get the help they need".

These included "a change to the rules will also mean that those fleeing domestic abuse and facing homelessness, as a result, will be automatically considered as a priority by their council for housing – ensuring more survivors of domestic abuse have access to a safe home."

The APPG's Campaign Briefing gave some context to this:

"Fifty-three per cent of survivors (52 out of 97) supported by the Women's Aid's No Woman Turned Away project, which provides additional support to women struggling to access refuge places, were prevented from making a valid homelessness application by their local authority. Nearly one quarter (23.1%) of these women were prevented from making a homeless application because they were told that they would not be in priority need. Whilst all of the women who approached their local housing team should have been considered vulnerable, the majority of women (92.3%, 48 out of 52) who were refused assistance also met one of the other priority need categories. This included 31 women fleeing with children, 10 of whom had mental health support needs and three having a physical disability."

Current position

Section 189 of the Housing Act 1996 ("the 1996 Act") defines "priority need" for Part 7 (homelessness) purposes:

"(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."

Article 6 of The Homelessness (Priority Need for Accommodation) (England) Order 2002/2051, made under section 189(2) of the 1996 Act, says that the following descriptions of persons have priority need for the purposes of Part 7:

"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." (Emphasis added)

The Homelessness Code of Guidance for Local Authorities ("the Code") supports this provision as follows:

"8.36 A person has a priority need if they are vulnerable as a result of having to leave accommodation because of violence from another person, or threats of violence from another person that are likely to be carried out. It will usually be apparent from the assessment of the reason for homelessness whether the applicant has had to leave accommodation because of violence or threats of violence. In cases involving violence, the safety of the applicant and ensuring confidentiality must be of paramount concern."

'21.34 In considering whether applicants are vulnerable as a result of leaving accommodation because of violence or threats of violence likely to be carried out, a housing authority may wish to take into account the following factors:
(a) the nature of the violence or threats of violence (there may have been a single but significant incident or a number of incidents over an extended period of time which have had a cumulative effect);
(b) the impact and likely effects of the violence or threats of violence on the applicant's current and future wellbeing;

(i) whether the applicant has any existing support networks, particularly by way of family or friends; and,
(ii) the continuing threat from the perpetrator."

Method of change

The Domestic Abuse Bill 2019-21, currently making its way through the House of Commons, will bring in the changes highlighted at the start of this article.

It should first be noted that its definition of "domestic abuse", at clause 1, includes controlling or coercive behaviour and economic abuse.

In that respect, and looking at existing provisions, section 177(1) of the 1996 Act provides that 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 (a) the applicant, (b) a person who normally resides as a member of the applicant's family or (c) any other person who might reasonably be expected to reside with the applicant.

Section 177(1A) then goes on to provide further details as to what is meant by 'violence' and 'domestic violence', whilst the Code comments:

"21.19 The term 'violence' should not be given a restrictive meaning, and 'domestic violence' should be understood to include physical violence, threatening or intimidating behaviour, and any other form of abuse which directly or indirectly may give rise to harm; between persons who are, or have been, intimate partners, family members or members of the same household, regardless of gender identity or sexual orientation."

(and it is worth considering paragraph 21.4 of the Code includes a full definition of domestic abuse).

In essence, and secondly, as is already the case in Wales, the hurdle of vulnerability will not need to be overcome as a separate concept over and above the fact of leaving accommodation due to domestic violence but will rather be "assumed". To put it in the priority need context, applicants for housing assistance in such cases will not need to first show that they are "more vulnerable than an ordinary person would be if they became homeless" before being accepted as being in priority need.

Impact

It is important to appreciate that whilst the announcement on 2 May 2020 was included as a package of "emergency funding to support [the] most vulnerable in society during pandemic" the proposed change to priority need status is intended to be permanent, and will therefore continue to apply after the end of the coronavirus pandemic.

Whilst it will offer admirable support for an undoubtedly at-risk class of applicants:

(a) The practical effect of the changes may not be as extensive as desired.

(b) The proposed changes will, as already noted, eradicate the need for an applicant to prove that they are vulnerable as a result of domestic violence in order to be assessed as being in priority need. Yet there still remains the potentially intimidating hurdle of an applicant demonstrating that they are a victim of domestic violence, which may in many cases involve the applicant adducing evidence of their vulnerability in any event. Section 21 of the Code - Guidance on providing homelessness services to people who have experienced or are at risk of domestic violence or abuse – is important for authorities to follow to this end, and it is hoped that the broader package of support, including more than £76m additional funding for domestic violence victims and charities may further ameliorate this concern.

(c) The reform does not in itself guarantee the applicant in the circumstances described here social housing. That can only be obtained, save for any eventual retention of existing social housing, via Part 6 allocation and the fundamental issue here is one of a general lack of stock.

Many victims of domestic violence may already qualify for 'priority need' without having to demonstrate vulnerability, for example by having dependent children with whom they reside or might reasonably be expected to reside (section 189(1((b)).

The forthcoming change will still however have a real and significant impact on the total number of people owed the full housing duty (see the APPG Campaign Briefing quote above).

The changes just one "part of the jigsaw" (see (c) above for example) but will provide much-needed assistance to those who would otherwise not benefit from 'priority need' status.

Andy Lane and Rowan Clapp are barristers at Cornerstone Barristers.

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