The below consultation response was drafted by Tessa Buchanan on behalf of the Housing Team at Garden Court Chambers in January 2018.
About Garden Court
- Garden Court Chambers has one of the largest specialist housing law teams in the country and has a reputation for excellence in this area. We cover all aspects of housing law including possession claims, unlawful eviction, homelessness, allocation of social housing, disrepair and housing benefit. Our practitioners also have specialist expertise in many of the ‘niche’ areas within housing law including Romani Gypsy and Traveller Rights, disability issues, welfare benefits, anti-social behaviour, community care, unfair terms in tenancy agreements, general planning matters, grants, licensing of houses in multiple occupation, housing standards, and the housing health and safety rating system. We are particularly committed to representing tenants, other occupiers and homeless people.
- We are grateful for the opportunity to respond to this consultation and are happy to discuss our comments and proposals further if that would assist. Our comments are intended to be constructive rather than critical.
Ambit of response
- This response does not deal with questions 2, 4, or 6, which seek information from local authorities.
Introduction and general remarks
- We are in full agreement with the aims of protecting victims of domestic violence and improving their access to safe, secure, and suitable housing. However, we have a number of concerns about the proposals, as set out below.
- We note as a preliminary point that an Impact Assessment (which is assumed to mean an assessment of the impact of the proposals on protected groups under the Equality Act 2010) was found to be “Not Applicable” (consultation document p.4). We do not agree with this. Firstly, these proposals will clearly have a particular impact on women, who are more likely to be victims of domestic violence. Secondly, as explained further below, the limited availability of specialist refuges means that the proposals are likely to discriminate against ethnic minority and disabled victims. The public sector equality duty under section 149 of the Equality Act 2010 is therefore engaged and an Impact Assessment should be undertaken.
Question 1: Do you agree with the proposal to use statutory guidance to recommend the exemption of victims of domestic abuse housed in refuges, and other forms of safe temporary accommodation, from any residency requirement?
- We agree with the underlying principle of this proposal, namely that victims fleeing domestic violence should be exempted from residency requirements in allocation schemes. This would be consistent with case-law which has found that allocation schemes imposing blanket residency requirements irrespective of personal circumstances are unlawful when applied to victims of domestic violence.
- However, we consider that the exemption should be made mandatory through regulations rather than being something which local housing authorities are “encouraged”, albeit “strongly”, to do through guidance. As the consultation document notes at p.6, members of the armed forces and tenants who need to move for work are exempt by virtue of statutory regulations. There is no reason why the same measures should not be put in place for victims of domestic violence. The consultation document does not provide any justification for the differential treatment.
- We also disagree with the proposal to limit the exemption to survivors of domestic abuse who are “housed in refuges, and other forms of safe temporary accommodation”. The exemption should apply to all victims of domestic violence who have fled, or need to flee, to another district. This is for the following reasons.
- Firstly, there is simply no reason for limiting it to people who are in refuges or other similar accommodation. People who are fleeing domestic violence but are not in a refuge are in just as much need as those who are so accommodated. Indeed, they may well be in more need given that people in refuges are safely housed, albeit in the very short term. In these circumstances, treating victims of domestic violence accommodated in refuges more favourably than those who are not might well give rise to unlawful discrimination contrary to Articles 8 and 14 ECHR. We acknowledge that there is a particular need to alleviate ‘bed blocking’ at refuges, whereby people are unable to move on to safe accommodation and so are forced to stay longer than might otherwise be the case. But if the objective of this consultation is ensure that victims of domestic abuse are able to access safe and secure accommodation, then the ‘bed-blocking’ issue is not a sufficient justification for the differential treatment.
- Secondly, the restriction cannot be justified in light of the severe national shortage of refuge spaces. A recent report by Women’s Aid found that provision fell short of the levels recommended by the Council of Europe; over 1,500 more spaces were needed; and of the 404 women supported by the project, only one-quarter were accommodated in a suitable refuge space. This means that the vast majority of survivors of domestic violence are not able to obtain access to a refuge and would not, therefore, benefit from the proposed exemption. In short, the measure would help only a small minority of victims.
- Thirdly, limiting the exemption to victims housed in refuges or similar accommodation is likely to be indirectly discriminatory under section 19 of the Equality Act 2010 in respect of people from ethnic minorities or with disabilities, both of whom are protected groups under section 4 of the Equality Act 2010. The Women’s Aid report found that the refuge shortages were particularly acute for these groups:
- Outside of London, there was limited provision for Black and Minority Ethnic women. Most regions had only “a handful” of spaces and there were no BME-specific refuges at all across the entirety of the South West.
- Only 11% of women with support needs arising from speaking a different language were accommodated in a suitable refuge space.
- Of the 110 women with No Recourse to Public Funds, only 8 were accommodated in a suitable refuge space.
- Whilst 26% of the women supported by the project had mental health support needs, less than 1 in 4 refuges could offer specialist in-house mental health support. 31% of the women with such needs were refused access to a refuge because of this issue.
- Disabled women, which included 27% of the women supported by the study, faced particular problems in accessing a refuge space.
- Limiting the exemption to persons in refuge spaces will undoubtedly impact more harshly on ethnic minority and disabled people, because of the particular problems they face in accessing such accommodation. This would be indirectly discriminatory and almost certainly unlawful. We therefore strongly recommend that the exemption is extended to all people fleeing domestic violence whether or not they are accommodated in a refuge.
- Fourthly, the limitation may be contrary to section 11 of the Children Act 2004, which requires certain public authorities to treat the best interests of children as a primary consideration. Many victims of domestic violence flee with their children. It is their best interests for settled accommodation to be obtained as soon as possible and excluding them from waiting lists on residence requirements simply because they are not being accommodated in a refuge space would be contrary to this.
- Fifthly, limiting the exemption to people in refuges poses practical problems. People on waiting lists for housing allocations can wait months or even years before being offered a home, if indeed they ever are. Refuges offer only very short-term accommodation. It is likely that a person will want or need to move on from the refuge before an allocation is available to them and it would clearly be irrational and unfair if they were then made subject to the residency requirement and therefore excluded from the waiting list. However, as currently proposed, the guidance could be interpreted as having this consequence. Moreover, many survivors only apply for an allocation of accommodation when they come to the point of leaving the refuge. It would be irrational to withdraw from them the protection of the guidance at the very point they become in need of it.
- Moreover, the proposal should include both those who have already fled the violence and those who are proposing to flee owing to the risk they would face if they remain. To limit the exemption only to survivors who have already fled – as the consultation document appears to envisage – would be unfair and illogical. The lack of alternative accommodation is a significant cause of people staying in abusive relationships. If victims could access housing lists before they have fled, this may help them to leave their perpetrator.
Question 3: Views are sought on the advantages and disadvantages of this proposal to apply the ‘medical and welfare’ and the homelessness reasonable preference categories to victims of domestic abuse who are living in refuges.
- We consider that victims of domestic abuse who are living in refuges will fall with the “medical or welfare” and “homeless” reasonable preference categories in any event, but agree that this should be made clearer in the statutory guidance. We note that the Supreme Court has already confirmed that a woman living in a refuge is homeless because the accommodation is not reasonable for her to reside in indefinitely (Birmingham v Ali  UKHL 36). As stated by Baroness Hale at §43:
It is a safe haven in which to find peace and support. But it is not a place to live. There are rules which are necessary for the protection of residents but make it impossible to live a normal family life. It is a place to gather one's strength and one's thoughts and to decide what to do with one's life.
- However, despite this, we are aware that some local housing authorities are still failing to recognise that people living in refuges are homeless. Indeed, the aforementioned report by Women’s Aid found that several local housing authorities refused even to accept applications when approached by survivors of domestic violence. We therefore agree that stronger guidance is necessary. As well as reminding authorities of the need to treat victims of domestic violence as homeless, or as requiring accommodation on welfare grounds, strengthened guidance would also offer greater clarity to victims of domestic abuse and those who support them. This will assist them to challenge unlawful decision-making when their rights are infringed.
- However we again consider that the guidance should make clear that the reasonable preference categories include victims of domestic violence even if they are not living in refuges. If, for example, the victim is still living with the perpetrator then his or her need is even greater than a person in a refuge, because they are still in a situation of danger. We note the rationale of freeing up valuable refuge space but do not consider that this justifies excluding survivors who are not in refuges.
- We also consider, again, that limiting the guidance to survivors accommodated in refuges is likely to be indirectly discriminatory, for the reasons given above.
- We note, finally, that even people with a reasonable preference may never be offered a property, given the pressure on housing. We would welcome guidance recommending that victims of domestic violence be given not just reasonable preference but additional priority, which would improve their chances of being offered accommodation.
Question 5: Do you agree that the guidance should encourage local authorities to use their existing powers to support their tenants who are the victim of abuse to stay in their homes if they wish to do so?
- We have real concerns about this proposal.
- Firstly, local authorities do not have adequate existing powers to support victims of domestic violence who wish to remain in their homes and therefore guidance encouraging them to “use” these powers would be of little use.
- The consultation document states that local authorities have powers “to support their tenants who are the victim of abuse to stay in their homes if they wish to”. However, the only example given of such a power, Ground 2A of Schedule 2 to the Housing Act 1985, is, we believe, of limited assistance. Ground 2A allows the Court to make a possession order, if it considers it reasonable to do so, where:
The dwelling-house was occupied (whether alone or with others) by a married couple, a couple who are civil partners of each other, a couple living together as husband and wife or a couple living together as if they were civil partners and—
- one or both of the partners is a tenant of the dwelling-house,
- one partner has left because of violence or threats of violence by the other towards—
- that partner, or
- a member of the family of that partner who was residing with that partner immediately before the partner left, and
- the court is satisfied that the partner who has left is unlikely to return.
- Given that the Court may only order possession on this Ground if satisfied that “the partner who has left is unlikely to return”, this does not enable the local housing authority to assist those tenants who wish to remain in their home.
- This is not to say that no powers exist by which local authorities can assist tenants who wish to remain. The local authority could, for example, seek an injunction against the perpetrator under the Anti-Social Behaviour, Crime and Policing Act 2014 or could assist the victim to do so. The local authority could assist a joint tenant to serve a Notice to Quit then grant a new tenancy to the victim alone. Depending on the facts of the case, there may be other grounds on which possession could be sought. However, it remains the fact that local authorities’ powers are fairly limited and to exercise them in practice is often difficult: for example, possession proceedings can take months, if not years, to be determined, especially where the ground on which possession is sought is discretionary. If the government wishes local authorities to be better able to assist victims who want to remain in their own homes, more powers are needed, not stronger guidance.
- Secondly, and in any event, the number of cases in which the victim wishes to remain in their home and it will be safe for them to do so are likely to be fairly small. As the recent report by Women’s Aid found, the problem lies not in local authorities failing to support tenants to remain in their homes, but in local authorities refusing to accept that tenants need to move. The report found that social services failed to meet their duty of care towards 32% of survivors who were fleeing violence and several of those women “were told that they were not experiencing domestic abuse or that they did not meet the risk threshold for intervention”. Similarly:
Local housing teams prevented 78 (19%) survivors from making a valid homeless application. 14 women were told to call the NDVH instead of making a homeless application and 11 cases did not consider the domestic abuse to be a significant risk factor to merit a domestic abuse application, with eight women being told to return to the perpetrator and three women told to come back when the situation got worse.
- This indicates that local authorities need stronger guidance on recognising and accepting when victims cannot remain in their own homes, rather than on using their powers to assist them to do so.
 R (HA) v Ealing LBC  EWHC 2375 (Admin).
 Nowhere to turn: findings from the first year of the No Woman Turned Away Project, (2017), Women’s Aid, https://1q7dqy2unor827bqjls0c4rn-wpengine.netdna-ssl.com/wp-content/uploads/2017/07/NWTA-Full-report.pdf.
 The consultation document refers to “medical and welfare” grounds but the legislation refers to “medical or welfare”.
 19% of women who approached local housing authorities were prevented from making an application: Nowhere to turn: findings from the first year of the No Woman Turned Away Project, (2017), Women’s Aid.