The long awaited Domestic Abuse Act finally received royal assent on 29 April 2021. The Act has a broad scope encompassing the establishment of a Domestic Abuse Commissioner; makes provision to assist victims to give evidence or otherwise participate in proceedings; provides for new and extended criminal offences as well as making changes that assist victims of domestic abuse in accessing housing and maintaining their security of tenure. In this article I highlight the key provisions that social housing providers need to be aware of.
Homelessness: Victims of domestic abuse
Section 78 of the Act came into force on 5 July 2021 and amends Part 7 of the Housing Act 1996, to substitute the old definition of domestic violence for domestic abuse. The new definition is set out in Section 1 of the Act and states the ‘behaviour of person (A) towards another person (B) is ‘domestic abuse’ if:
- A and B are each aged 16 or over and are personally connected to each other; and
- The behaviour is abusive
Behaviour is abusive if it consists any of the following: physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse or psychological, emotional or other abuse. It does not matter whether the behaviour consists of a single incident or course of conduct. Further, A’s behaviour may be ‘towards B’ despite the fact it consists of conduct directly at another person (for example B’s child).
Section 2 of the Act states that two people are ‘personally connected’ if any of the following applies:
- they are, or have been, married to each other;
- they are, or have been, civil partners of each other;
- they have agreed to marry one another (whether or not the agreement has been terminated);
- they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
- they are, or have been, in an intimate personal relationship with each other;
- they each have, or there has been a time when they each have had, a parental relationship in relation to the same child;
- they are relatives.
The application of these definitions will expand the categories of those who may qualify for homelessness assistance. The Act also makes it easier for victims of domestic abuse to be found eligible for accommodation if they are homeless as a result of being a victim of domestic abuse, by creating a new and defined category of priority need. The Homelessness Code of Guidance for Local Authorities has been significantly updated to take account of the new provisions.
Section 79 – Grant of Secure Tenancies in cases of domestic abuse
This provision is due to come into force on 1 November 2021 and inserts a new Section 81ZA into the Housing Act 1985. It applies when a local housing authority is granting a tenancy where the applicant or a member of their household is or has been a victim of domestic abuse, and the new tenancy is granted for reasons connected with that abuse. The housing authority must grant a secure tenancy that is not a flexible tenancy if the tenancy is offered to someone who was previously a tenant under a qualifying tenancy. A qualifying tenancy is a secure or assured non-shorthold tenancy granted by registered provider of social housing or housing trust which is a charity. This is designed to ensure that those who need to be rehoused as a result of domestic abuse do not lose their previous security of tenure.
Part 5 – Protection for victims, witnesses etc. in legal proceedings
This part of the Act brings in wide ranging measures to safeguard witnesses who may have been the victims of domestic abuse in criminal, family and civil proceedings. The provisions in relation to civil proceedings are likely to be relevant to landlords, particularly when seeking injunctions and are due to come into force in Spring 2022.
Section 64 provides that rules of court must make a provision to enable the court to make a special measures direction in relation to a person who is a party or witness in civil proceedings where that person is or is at risk of being a victim of domestic abuse or is the victim or alleged victim of the specified offence. This will ensure that victims of domestic abuse are given the opportunity to give evidence without intimidation, for example behind a screen, via live link or in private. The civil procedure rules will need to be amended to bring this into effect. Although it is not anticipated that this will be in force until spring 2022, it is worth considering in current proceedings and asking the court for similar directions relying on the overriding objective which gives the court wide powers. In particular CPR 1 provides that the case should be dealt with ‘justly’ and ensure ‘that the parties are on an equal footing and can participate fully in proceedings and that parties and witnesses can give their best evidence.’
Section 66 inserts a new Part 7A into the Courts Act 2003, which will make a provision to limit the right of a litigant in person to cross examination of vulnerable witnesses in civil proceedings. Once in force, a party to the proceedings will not be able to cross examine the witness in person if they; have been convicted of or cautioned for a specified offence, are subject to an on notice injunction which is in force, or where a witness has been a victim of domestic abuse carried out by that party. The court will need to consider whether there is a satisfactory alternative means for the witness to be cross examined or of obtaining the evidence. If there is not, the court has power to invite the party to arrange for a qualified legal representative to cross examine, and if that is not possible the court must appoint a representative to cross examine the witness.
For more information, please contact Donna McCarthy.