Yemshaw V London Borough of Hounslow [2011] UKSC 3: Judgment handed down 26th January 2011
Martin Hodgson appeared for Mrs Yemshaw in the Court of Appeal and County Court. In the Supreme Court he was led by Natalie Lieven QC.
Mrs Yemshaw left her former matrimonial home with her two children and was accommodated in a refuge. She applied to Hounslow for housing alleging that her husband had been guilty of abusive behaviour but accepted that he had never struck her or threatened to do so. S. 177(1) Housing Act 1996 provides that it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence. Hounslow concluded that Mrs Yemshaw was not homeless because her husband had not struck her, or threatened to do so, and it was not probable that he would if she retuned. On appeal, the County court judge held that he was bound by the previous Court of Appeal decision in Danesh V Kensington and Chelsea RBC [2007] 1 WLR 69. On appeal, the Court of Appeal, [2009] EWCA Civ 1543, followed Danesh.
The Supreme Court overruled the decision of the Court of Appeal in this case and Danesh. The leading judgment was given by Lady Hale who held that violence is ‘not a term of art’ and ‘in this case the purpose is 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. A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life…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) (No2) [2009] 1 WLR 251.
A victim of domestic violence who comes within S. 177(1) is deemed to be homeless. Although judging such cases will not be easy, it is no more difficult than other decisions housing officers routinely make and does not import a subjective test.