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In a 2011 decision, the United Kingdom Supreme Court considered whether the meaning of “violence” in England’s Housing Act (the Act) could be understood more widely as including abusive behavior, such as psychological, sexual, or financial abuse.
What Happened?
The woman at the center of the decision is married with two small children. She had previously lived with her husband in their matrimonial home but had to flee due to domestic violence. Since leaving the home, the woman had been living at a woman’s shelter with her children.
In 2008 the woman applied for housing assistance on the grounds that she was homeless as understood by the Housing Act. The local housing authority decided that, for the purposes of the Act, she was not homeless and that it was reasonable for her to live in her former matrimonial home, stating:
We are of the opinion that your husband may be upset that you left the property with the children, but do not believe that this would lead to probability of threats or actual violence. We apply the statutory test of ‘probability of domestic violence’ and as to whether it is reasonable for you to return to [the matrimonial home] whilst seeking legal advice on your matrimonial rights to the accommodation …
The woman appealed to the County Court, stating that while she was never physically assaulted by the husband, she was scared of him and that his controlling behavior amounted to emotional, psychological, and financial abuse constituting “domestic violence” under the Act. As such, it would be unreasonable for her to continue to occupy the matrimonial home, and therefore, she was homeless for the purposes of the Act and should be eligible for assisted housing.
The woman claimed that the husband “hated” her, and suspected that he was seeing another woman. She further claimed that she was afraid that if she confronted him he would hit her (though, to that point, he had not). She additionally claimed that he shouted in front of the children, did not treat her “like a human”, and did not provide her with sufficient funds for housekeeping.
The County Court judge rejected the woman’s argument, and upheld the housing authority’s decision, on the grounds that “domestic violence” under the Act had previously been interpreted as meaning physical violence involving some form of physical contact.
The woman appealed the County Court’s decision.
The Relevant Legislation
Section 175(3) of the Act stipulates that a person shall not be treated as having accommodation unless that accommodation was “reasonable” of them to continue to occupy.
Section 177 of the Act outlines the circumstances in which it is deemed not to be reasonable for a person to continue to occupy accommodation, including:
(1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence 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 “violence” means
(a) violence from another person; or
(b) threats of violence from another person which are likely to be carried out; and violence is “domestic violence” if it is from a person who is associated with the victim.
(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. [Emphasis added]
On appeal, the woman argued that the above sections of the Act are social legislation, intended to address a particular need involving some of the most vulnerable members of society. As such, the legislation should be flexibly interpreted and applied in accordance with changes in understanding and social awareness of domestic and other violence.
The Court of Appeal
The wife’s appeal was dismissed. Prior to dismissing the wife’s appeal, the lower court had acknowledged that the language in some legislation has meaning that may change depending on social and other conditions. The court noted that an interpretation of “violence” only in accordance with its “natural meaning” as involving physical contact would negate changing social attitudes and government policy around domestic violence. However, they had ultimately ruled against a broader interpretation of domestic violence, stating that in drafting the legislation, Parliament had not intended violence to have a different meaning according to whether it was “domestic” or not, and that it “cannot seriously be contended that the meaning of ‘violence’ and ‘domestic violence’ has, due to social and other changes acquired a new meaning…”.
The wife appealed further.
The Supreme Court Decision
The Supreme Court considered the dictionary (i.e. “natural”) definition of violence, and found that while physical violence is clearly an example of violence, it is not the only possible example. The dictionary also contemplates that violence can include “vehemence of personal feeling or action; great, excessive, or extreme ardour or fervour; . . . passion, fury” and “strength or intensity of emotion; fervour, passion”. When used as an adjective violence can refer to a range of behaviour falling short of physical contact with another person.
Policy and other research clearly indicates that domestic violence is not limited to physical assault. The Supreme Court referred to a wide variety of sources, including the United Nations Committee, which monitors the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the House of Commons Home Affairs Committee, and the Report of the Law Commission on Domestic Violence and Occupation of the Family Home that all supported a broader definition of violence.
The Supreme Court noted that domestic violence should be interpreted to include:
… physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.
The Supreme Court unanimously allowed the woman’s appeal and remitted the case back to be decided by the housing authority.
Jason P. Howie has been providing family law services to clients in Windsor and the surrounding regions for more than 25 years. Many prospective clients come to Jason through referrals from current or past clients, and also through referrals from lawyers, accountants, medical professionals and marriage counsellors. To discuss your legal needs with Jason, call 519.973.1500 or contact us online.
