Waltham Forest v Hussain extended definition of violence

This is a much needed judgment by the court of appeal dealing with the interpretation of violence in a homelessness context. TV Edwards Solicitors acted for Ms Hussain instructing Toby Van Hagen of Arden Chambers led by Stephen Knafler QC of Garden Court in the court of appeal.

Whilst the definition of domestic violence was extended in 2011 in the case of Yemshaw v Hounslow LBC [2011] UKSC 3; [2011] 1 WLR 433, the judgment did not stretch to other violence having the same wider definition of “any other form of abuse which, directly or indirectly, might give rise to the risk of harm” including psychological harm.

In the county court appeal, the Recorder found that Waltham Forest reviewing officer had applied a definition of violence restricted to physical violence or threats of physical violence, which was inconsistent with Yemshaw. Waltham Forest appealed and their appeal was dismissed.

S.177 of the Housing Act 1996 as amended provides that it is not reasonable to continue to occupy accommodation, if it is probable that this will lead to domestic violence or other violence against them. The court of appeal found in considering Yemshaw that domestic violence could not be given a special meaning. The structure of the drafting of s.177 was clearly as a single concept of violence of which domestic violence was a sub category.

What does this mean for future homeless applicants? Do we have one definition of domestic violence in Yemshaw that applies to both types of violence domestic and other? 

The court of appeal found an applicant would be able to come within s177 (1) ( other violence), only by demonstrating conduct, actual or threatened, which could properly be described as violent; even in the broader sense endorsed in Yemshaw, that was not equivalent to conduct which was merely anti-social, however persistent or frequent, or indeed to any conduct which might cause psychological harm.  The principal element in the definition used in Yemshaw was behaviour liable to put the victim in fear, even if the fear was not of immediate physical injury. This has to be distinguished from behaviour which was merely offensive or upsetting. When considering whether the behaviour complained of satisfies the definition of violence we need to be minded as to whether threatening and intimidating behaviour or abuse is of such seriousness that it might give rise to psychological harm.

In Ms Husain’s case it appeared there was no dispute over the nature of the abuse she suffered at the hands of a member of her neighbour’s family, it was the restrictive nature of the test applied to the definition of violence or threats of violence which prevented her from obtaining relief in the form of rehousing.

 There is no additional requirement for a medical diagnosis; rather it is an ordinary not necessarily medical definition of psychological harm which should be considered. The clarification this judgment provides is most welcome for the many victims of other violence previously striving to demonstrate the probability of violence.