Domestic Abuse Act: a missed opportunity?
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Louise Heath
The Domestic Abuse Act 2021 (DAA) received royal assent on 29 April 2021. At the time of writing, the majority of its provisions are not yet in force. The protection the Act provides to victims of domestic abuse, although well overdue and welcome, does not go far enough. In this article, Sue James, Cris McCurley and Marina Sergides explain why.
The Crime Survey for England and Wales 2020 showed that 1.6m women and 757,000 men had experienced domestic abuse between March 2019 and March 2020. Referring to the impact of the pandemic, the Office for National Statistics (ONS) reported that in mid-May 2020 (the week that the first lockdown eased), there was a 12 per cent increase in the number of domestic abuse cases referred to victim support services compared with the previous week, and between April and June 2020, there was a 65 per cent increase in calls to the National Domestic Abuse Helpline, when compared with the first three months of that year. The police recorded 259,324 offences flagged as domestic abuse-related in the period March to June 2020. This represents a seven per cent increase from 242,413 in the same period in 2019 and an 18 per cent increase from 2018.
Our experience, and that of many others, of working with domestic abuse victims is that their inability to access housing and support represents a significant obstacle to their ability to flee the abuse. Women’s Aid put it succinctly in its Domestic abuse report 2020: the hidden housing crisis (June 2020):
Domestic abuse is by its very nature a housing issue. The perpetration of domestic abuse creates a context of fear and curtailed freedom; usually in the places where women and their children should feel the safest, namely their homes. Every survivor’s experience is different, but housing is often a critical factor in being able to escape an abuser or abusers (page 8).
What are the main provisions of the DAA relating to housing?
First, the Act defines ‘domestic abuse’ more broadly than previously and, importantly, includes coercive control as a significant and impactful form of domestic abuse (DAA ss1 and 78). This is a welcome change for a whole host of reasons but, most importantly, because victims do not now have to prove that they are truly ‘victims’ worthy of support before it is forthcoming. If one looks at the first incarnation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the gateway requirements for domestic abuse victims, the only ‘proof’ acceptable to the government was a conviction for a domestic abuse specified offence in a criminal court or a finding of fact in a family court. This completely negated all forms of non-physical violence within the statute.
In the timely case of Yemshaw v Hounslow LBC [2011] UKSC 3, Lady Hale carefully considered the definition of domestic abuse and held that while physical violence was undoubtedly abuse, it was not the only example. She went on to mention fury and other emotions that fell short of physical violence, as well as mental repression. Thus commenced virtually a decade of lobbying by stakeholder groups including women’s NGOs and specialist lawyers, appealing to the UN Committee on the Elimination of Discrimination against Women commissioners (2013 and 2019) and working with the Ministry of Justice (MoJ) towards reaching a more enlightened definition – a campaign that was finally realised in this Act. It is notable that significant numbers of perpetrators and their victims do not recognise non-physical violence as abuse, and historically neither have professionals working in this field, so its inclusion is a significant step forward and something that practitioners will find invaluable.
Second, when applying as homeless under Part VII of the Housing Act (HA) 1996, victims of domestic abuse will be in ‘priority need’ and will not have to establish that they are also vulnerable as a result of the abuse suffered (DAA s78 amends HA 1996 s189). This is a significant shift from the current position.
Third, where a local authority grants a secure tenancy to a domestic abuse victim, that tenancy must not be a flexible tenancy where the victim was previously a secure tenant but, rather, a lifetime tenancy (DAA s79 inserts s81ZA into the HA 1985). While this is a welcome development, it is not to be overplayed. The DAA does not amend HA 1996 s193 such that the local authority can only discharge its duty to domestic abuse victims by offering them a tenancy of a property that it owns and by offering them a lifetime secure tenancy. It remains the position, therefore, that, subject to DAA s79, domestic abuse victims can still be offered private tenancies.
Fourth, there are new duties on local authorities in England relating to the provision of support for victims and their children residing within relevant safe accommodation (such accommodation yet to be defined) and a duty on local authorities to cooperate (DAA ss57–61).1The Ministry of Housing, Communities and Local Government has launched a consultation on the statutory guidance in respect of these provisions, which closes on 27 July 2021. Although there is some cautious optimism relating to these duties, their effectiveness will depend on a proactive approach from cash-strapped local authorities.
Last, there is scope to argue that domestic abuse protection orders (DAPOs) may be available in housing proceedings where the victim and the person against whom the order is sought are both parties (such as possession claims against joint tenants or injunctions) (DAA s31).
A missed opportunity?
The Act does not go far enough and, in our view, for various reasons (mostly outside the scope of this article) this has been a missed opportunity to fully grasp and address the complexities of domestic abuse.
First, the Act does not address the restrictions on support for victims who have no recourse to public funds (NRPF) (with the exception of those in the Discretionary Domestic Abuse Concession (DDAC) scheme). Despite the Tampon Tax Fund pilot scheme to provide support to NRPF victims of domestic abuse, led by Southall Black Sisters (SBS) in 2018 and its report on the same (Dr Thiara, Safe and secure: the no recourse fund, December 2020), the government voted down the Lords amendment to enlarge the DDAC to all forms of visa holders, which would entitle all victims fleeing abuse with precarious visa status to access benefits and accommodation. Its reason was lack of evidence to make a decision on the necessity of this proposed amendment. This was despite the statistics in SBS’s report that demonstrated that the NRPF restriction left out approximately 50 per cent of migrant women and children fleeing domestic abuse, leaving them destitute (see table 3, page 21).
The government has, however, recently announced a pilot support scheme (the Support for Migrant Victims Scheme) to assist those with NRPF, to be delivered by SBS. Given the statistics relating to domestic abuse incidents reported and, of course, the many more thousands that are not reported, the £1.5m allocated for the scheme is woefully low.2When social services support is provided to families with NRPF, domestic abuse is often a key feature in causing their situation of homelessness. This was identified in a 2015 research report by the Centre on Migration, Policy and Society at Oxford University. It is also requiring the already overcommitted SBS to go through the motions of repeating the work already undertaken and funded by the tampon tax.
Second, the Act fails to give victims any real say over how or where they should rebuild their lives. It does not, for instance, dispose of the ‘local connection’ requirements in HA 1996 Parts VI or VII, allowing local authorities to decide where a domestic abuse victim should live, based on broad policy rather than on the facts of each case. Domestic abuse is complex and victims and their children not only need to be in safe accommodation in a safe place, but also to be around their support networks and services. A welcome amendment, therefore, would have been to address the decision in NJ v Wandsworth LBC [2013] EWCA Civ 1373, which held that accommodation at a women’s refuge could constitute residence of a person’s ‘own choice’.
Third, the MoJ commissioned an independent inquiry into the capacity and ability of the family justice system to adequately protect victims of abuse, and its findings were startling: Assessing risk of harm to children and parents in private law children cases: final report (June 2020). The results showed an overwhelming need not met by the available resources, which have been repeatedly cut by successive governments. For example, the new police powers in Part 3 of the Act are far wider than the police powers that predate them. Previously, the police had the power to issue police information notices (PINs) (which allowed police to remove a perpetrator from shared accommodation for a specified period) and the limited powers to obtain protection orders on conviction before magistrates of a specified offence of violence. Historically, however, the police rarely used these powers and relied more heavily on giving unhelpful advice to victims rather than taking action on a report of assault. Accordingly, while expanding police powers in the context of domestic abuse is welcome, it does not follow that they will be given the additional resources to act on them. A significant factor is the savage cuts to the police budget and shortages of police on the streets. It is hard to see how the new domestic abuse protection notices (DAA ss22–26) or DAPOs (s27) will fare any better. Without significant investment, this Act with be an aspiration without achievement.
An integrated approach?
Investment in new ways of delivering advice services will also be key to the Act’s success. As housing is a critical factor in being able to escape abuse, so is advice regarding those rights, so that victims can make informed choices. An integrated, holistic service model would ensure that victims of domestic abuse were aware of their housing and family rights and could make informed choices before escalation. Domestic abuse cases are often a mix of legal and non-legal issues: family and housing law, financial, debt, childcare and education. The issues are clustered together and in order to escape, the victim will need to have all of them addressed.
In Australia, there are a number of projects that could be replicated in the UK: for example, the Stepping Stones project was commenced to assist women experiencing family violence and financial hardship. They developed new ways of advocating for their clients – pushing courts, government departments and creditors to take into account their client’s experience of family violence and financial hardship when making decisions that impact on economic well-being. The lawyers work alongside social workers and financial counsellors. The Royal Women’s Hospital, Melbourne, at the forefront of the health-justice partnerships movement, enables women to access legal advice from lawyers from Inner Melbourne Community Legal while attending hospital appointments.3See: www.youtube.com/watch?v=IA3QkKBKKB4 and https://healthjustice.org.au/?wpdmdl=3935.
To be successful, this change will involve a fundamental shift in how social welfare cases are funded and the value of lawyers and non-lawyers working alongside each other to provide a wrap-around service – one that puts the client at the centre. It has the potential to make lasting change.
The authors of this article were panellists at the housing/domestic abuse workshop at LAG’s Housing Law Conference in June, on which this article is based.
 
1     The Ministry of Housing, Communities and Local Government has launched a consultation on the statutory guidance in respect of these provisions, which closes on 27 July 2021.  »
2     When social services support is provided to families with NRPF, domestic abuse is often a key feature in causing their situation of homelessness. This was identified in a 2015 research report by the Centre on Migration, Policy and Society at Oxford University.  »

About the author(s)

Description: Sue James
Sue James is CEO of LAG. She was previously director and housing solicitor at Hammersmith & Fulham Law Centre and a founding trustee at Ealing Law...
Description: Cris McCurley
Cris McCurley is a partner at Ben Hoare Bell.
Description: Marina Sergides - author
Marina Sergides is a barrister at Garden Court Chambers, specialising in all aspects of housing law. She is co-chair of the Housing Law Practitioners'...