The Supreme Court handed down its judgment in the case of Yemshaw v Hounslow LBC [2011] UKSC 3 on 26 January 2011. The issue in that case was the meaning of “violence” in section 177(1) of the Housing Act 1996 (“the Act); and whether it was limited to physical contact or whether it included other forms of violent conduct.

In August 2008, the Appellant left the matrimonial home in which she lived with her husband, taking her two young children with her, and sought the help of the local housing authority, complaining of her husband’s behaviour and stating that she was scared that if she confronted him he might hit her. The officers decided that she was not homeless as her husband had never actually hit her or threatened to do so. On review, the panel believed the probability of domestic violence was low, and it was reasonable for her to continue to occupy the matrimonial home.

Under section 193 of the Act, where a local housing authority is satisfied that an applicant is homeless and did not become homeless intentionally, they must make accommodation available for the applicant, unless they refer the application to another local housing authority. Section 175(1) provides that a person is homeless if he has no accommodation available for his occupation. Section 175(3) provides that a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. Section 177(2) states that in determining whether it is reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the local housing authority district. Section 177(1) states 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 him or other members of his household.

Section 198 of the Act provides that one of the conditions for referral to another local housing authority is that neither the applicant nor other members of his household will run the risk of domestic violence in the other district. The Court of Appeal in Kensington and Chelsea Royal London Borough Council v Danesh [2006] EWCA Civ 1404, had held that it was limited to physical contact, and the word “violence” on its own did not include threats of violence or acts or gestures, which lead someone to fear physical violence.

Lady Hale, giving the leading judgment of the Supreme Court, held that “domestic violence” in section 177(1) of the 1996 Act should be understood as including physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm. “Physical violence” is not the only natural meaning of the word “violence”; another natural meaning is “strength or intensity of emotion; fervour, passion”. Furthermore, “violence” is capable of bearing several meanings and applying to many different types of behavior, which can change and develop over time. By the time of the 1996 Act, both international and national governmental understanding of the term “domestic violence” had developed beyond physical contact.

The essential question is whether an updated meaning is consistent with the statutory purpose, being primarily to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. The purpose of the legislation would be achieved if the term “domestic violence” were interpreted in the same sense in which it is used by the President of the Family Division, in his Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) {6518457|[2009] 1 WLR 251, para 2, suitably adapted to the forward-looking context of sections 177(1) and 198(2) of the Housing Act 1996: “Domestic violence' includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.”

Lord Rodger, concurring, could see no reason why Parliament would have intended the position to be any different where someone will be subjected to deliberate conduct, or threats of deliberate conduct, that may cause her psychological, as opposed to physical, harm. To conclude otherwise would be to play down the serious nature of psychological harm. Lord Brown indicated his very real doubts that Parliament intended “domestic violence” to extend beyond the limits of physical violence but did not feel sufficiently strongly to carry these doubts to the point of dissent.