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Domestic Violence: local authority duties and responsibilities

Johanne Enright, a family barrister, and Justin Bates, a housing barrister, suggest some novel ways in which the duties of social housing landlords can be used to protect victims of domestic violence.

image of Johanne Enright, barristerimage of Justin Bates, barrister

Johanne Enright, barrister, Meritz Chambers, and Justin Bates, barrister, Arden Chambers 

Introduction (Johanne Enright) 
I attended a seminar Justin given to volunteers with the Rights of Women on the powers of local authorities (London Borough Councils; district councils and unitary authorities).  As a family law practitioner it was a real eye opener to me that such powers existed.  I recalled some of the times when such remedies would have been helpful where traditional routes were not an option. Take, for example, the case of a woman who is suffering domestic violence and is not entitled to legal aid. She does not feel able to do a DIY injunction or feels too vulnerable to take matters into her own hands and instigate any sort of proceedings again the perpetrator. What if, say the exclusion zone on a Family Law Act 1996 order is proving to be insufficient and the courts will not extend.  These are some of the examples where the local authority could play a part in dealing with domestic violence. This article will examine the powers that the local authority has in this regard and attempt to find out whether they are being implemented.

Part1: Local Authority Powers and Duties (Justin Bates)

Local authorities can – and should – play a significant role in combating domestic violence and taking pro-active steps to prevent domestic violence, or certainly to prevent further domestic violence, particularly in the context of their housing management functions. A number of my local authority clients have adopted this approach and the matters set out herein are the statutory powers that we tend to rely on when seeking injunctions or other remedies against the perpetrators of domestic violence.  

Injunctions under the Housing Act 1996
All local authorities are empowered to use s.153A Housing Act 1996 to prevent domestic violence in the context of their housing management functions.

Section 153A Housing Act 1996 provides that a relevant landlord  may apply to the court for an injunction if it can show that the defendant has engaged or threatened to engage in housing-related conduct which is capable of causing a nuisance or annoyance to a relevant person.

Behaviour is “housing related conduct” if directly or indirectly relating to or affecting the housing management functions of a relevant landlord.  Housing management functions of a relevant landlord include:

(a) functions conferred by or under any enactment;
(b) the powers and duties of the landlord as the holder of an estate or interest in housing accommodation.

A relevant person  is:

(a) a person with a right (of whatever description) to reside in or occupy housing accommodation owned or managed by a relevant landlord,
(b) a person with a right (of whatever description) to reside in or occupy other housing accommodation in the neighbourhood of housing accommodation mentioned in paragraph (a),
(c) a person engaged in lawful activity in, or in the neighbourhood of, housing accommodation mentioned in paragraph (a), or
(d) a person employed (whether or not by a relevant landlord) in connection with the exercise of a relevant landlord's housing management functions.

If the court grants an injunction under section 153A the court may prohibit the defendant from entering or being in any premises or any area specified in the injunction.  Additionally, a power of arrest can be attached to any provision of the injunction.  Further, the court is expressly empowered to exclude a person from their normal place of residence.

Before attaching either or both provisions to injunctions under section 153A the court has to “think” that either of the following applies:

(a) the conduct consists of or includes the use or threatened use of violence; or
(b) there is a significant risk of harm to a relevant person.

Harm includes serious ill-treatment or abuse (whether physical or not).

What does this have to do with domestic violence?

(a) assaulting someone (or threatening to assault them) is plainly conduct which is capable of causing nuisance or annoyance;
(b) assaulting someone interferes with the housing management functions of a local  authority because:
(i) if the person is a tenant of the authority, it interferes with their peaceful enjoyment of their property;
(ii) if it damages the property of an authority, the authority will be required to repair the damage;
(iii) even if the person assaulted is not a tenant of the authority, by being assaulted they are likely to be regarded as “homeless” for the purposes of homelessness applications and the authority may be under a duty to re-house them.

If there was any doubt about the matter, the guidance issued by the Secretary of State under s.218A Housing Act 1996 is clear. A local housing authority is obliged to prepare and publish an anti-social behaviour policy. The policy must make provision for “dealing with domestic violence.”

What are the advantages of such an injunction?

(a) the victim is very unlikely to be required to give evidence as the authority is entitled to present a case based entirely on hearsay and police evidence;
(b) there is none of the trauma associated with going through the criminal courts;
(c) there should be less pressure on the woman to withdraw the allegations, since it is the authority, not her, who brings the case;
(d) authorities are generally financially able to bring such cases;
(e) there is no need to criminalise the perpetrator. 

Most importantly, because the authority, not the victim, brings the case, proving breaches  is often a comparatively easier matter. Take, for example, the recent case of Accent Foundation Ltd v Lee [2007] EWCA Civ 665. Accent, as a Registered Social Landlord, has the same right to seek a s.153A injunction as a local authority.
Accent were the owners of significant amounts of housing accommodation in Bradford and Leeds. Mr Lee’s mother and sister lived in properties owned by Accent. Mr Lee had a history of violence towards them both. In October 2006, Accent obtained an injunction prohibiting Mr Lee from entering various parts of Bradford and Leeds. Mr Lee subsequently breached the injunction  was arrested and sentenced to two months’ imprisonment for his contempt.

What is noticeable about the case is that neither his mother nor sister appear to have complained, either to secure the initial injunction or on the breach. The evidence seems to have come from police witnesses and local residents. The Court of Appeal was entirely untroubled by such evidence and regarded it as an excellent use of the powers.

The policies of local authorities
In addition to these specific powers, local authorities must also formulate and publish various policies setting out their approach to anti-social behaviour generally and how they intend to improve their areas. These policies are all public documents and practitioners should examine them in order to see what the authority has committed itself to doing about domestic violence.

The most significant duty is that imposed by s.6(1) of the Crime and Disorder Act 1998. The “responsible authorities” as defined by section 5,  must formulate and implement, inter alia, a strategy for the reduction of crime and disorder in the area (including anti-social and other behaviour adversely affecting the local environment).  The strategy must be kept under review for the purposes of monitoring their effectiveness and making any necessary or expedient changes.

In addition, by section 4(1) of the Local Government Act 2000, local authorities must prepare a “sustainable community strategy” for promoting or improving the economic, social and environmental well-being of their area. Given the financial impact of domestic violence (if only in terms of the cost to the authority of re-housing victims and / or considering care proceedings) there is no reason why domestic violence should not be addressed in either or both of these strategies.

The additional powers and duties of local authorities
Whilst s.153A Housing Act 1996 most obviously ‘fits’ with domestic violence prevention, practitioners and authorities should also have regard to the general duty imposed by section 17 Crime and Disorder Act 1998, which obliged every local authority to exercise all its functions with “due regard to the likely effect of the exercise of those functions on and the need to do all that it reasonably can to prevent crime and disorder in its area (including anti-social and other behaviour adversely affecting the local environment)…”

In addition, by virtue of s.2 Local Government Act 2000, a local authority is empowered to do anything  which it considers is likely to achieve the promotion or improvement of the economic, social and/or environmental well-being of their area. There is no reason why preventing domestic violence would not fall within the scope of s.2.

So, in conclusion, local authorities can and should play a significant role in reducing domestic violence – not just by re-housing victims, but by using their coercive powers to maximum effect. The best authorities are already at this stage. Others need to be pushed to do more. The tools are there and there is no reason not to use them.

Part 2: Are LAs using their powers? A case study (Johanne Enright)
I carried out some under cover investigations to see if Brent Council and an organisation called Brent Domestic Violence Advocacy Project were aware of Brent’s duties and powers?  I put myself in the position of a woman who had recently suffered domestic violence, who could not go down the Family Law Act 1996 route and wanted immediate information on what her local authority could do.

I checked out Brent’s policy entitled London Borough of Brent Domestic Violence Corporate Strategy 2005 – 2008 (available online).  There is no mention of the powers available to them as Justin has mentioned.  The nearest the report came to it was under Part 3 Strategy, where it states ‘Investigate and initiate possession proceedings against the perpetrator, assuming there is sufficient evidence to secure a successful outcome to the proceedings.  Investigate its successful implementation in other boroughs.

I then went to a One Stop Shop and asked to speak to someone about housing.  I was told to use the free telephone to make enquires.  I was then asked what the housing matter was in relation to.  I told the member of staff it was domestic violence.  She then looked for leaflets and I was given the following.

Community Legal Service leaflet on Domestic Violence, Abuse and Harassment.  No mention of housing or local authority duties.  Domestic Violence is a Crime leaflet from Brent Council.  Again, no mention of their duties. Brent Domestic Violence Advocacy Project leaflet which states that someone will help with access to services such as housing.

I then checked out Brent’s website.  Nothing on domestic violence stood out so looked under ‘d’ for domestic violence in the index, nothing, so looked under ‘h’ for housing. I tried the phone number given for housing applications.  The number was not recognised.

I rang the number for housing allocations and asked what Brent could do if someone was suffering domestic violence.  I was advised that I needed to report the incident to the police, as I needed a crime reference number. Brent would then house me in hostel or temporary accommodation but I should make an application to another borough as Brent will only accommodate in Brent and that might not be far away enough from the perpetrator.

I then asked what if woman does not want to leave property what would Brent do.  I was told they would secure property.

I then asked what Brent could do to prevent perpetrator from coming to the property.  I was informed that I would have to take it up with the police and go to court.  I then asked if Brent would do this and was told the police would do it.

I called the Brent Domestic Violence Advocacy Project who was very helpful and it was encouraging to get good helpful advice but no mention of local authority duties even when I asked what Brent could do if a victim wanted to stay in the property.

There will be times when as Solicitors and Barristers we encounter clients who for what ever reason do not fit the Family Law Act 1996 ‘mould’ and local authority powers will be vital in securing the well being of that client.  For my part, as a barrister, I will be advising Instructing Solicitors of these powers and as a volunteer with the Rights of Women I will be advising callers of these duties and to speak to their housing officer.

Johanne Enright is a barrister at Meritz Chambers specialising in Family Law

Justin Bates is a barrister at Arden Chambers specialising in Housing Law