In a case brought by PILC on behalf of a domestic abuse survivor,the High Court has ruled that decisions taken by housing associations around the consideration and refusal of management transfers are subject to judicial review.
In our latest blog, Izzy Mulholland explains the significance of the ruling both in terms of legal precedent and the practical implications for survivors.
What’s going on?
In 2021, our client T, a survivor of domestic abuse, applied for a management transfer that would allow her to move to new accommodation where she and her children would be safe from the perpetrator of the abuse.
The key finding in the decision handed down by the High Court in the case known as TRX v Network Homes Limited  is that decisions taken by housing associations relating to the consideration and refusal of management transfers are subject to judicial review.
The court also found that when a council or housing association makes a decision on a a management transfer application, the decision must not be generic. Rather, it must explain properly and adequately why its own policy criteria have not been satisfied to ensure the applicant understands why their application is being refused. This was the main ground on which T’s judicial review challenge succeeded.
What are the other implications of the judgment?
Other key implications of the case include:
Clarification around the definition of domestic abuse: Network Homes agreed that domestic abuse does not solely constitute physical abuse. This was in line with the definition of domestic abuse outlined in section 1 of Domestic Abuse Act 2021. As a consequence, the housing association must in future deem all forms of domestic abuse to come within the definition of the term when considering management transfer applications.
Requirement to make a homelessness application: Network Homes also confirmed that in T’s case there was no policy or requirement that she make herself homeless in order to access accommodation. Therefore, if Network Homes suggest that an applicant should make a homelessness application before a management transfer can be processed, caseworkers can point to this judgment as a basis for challenging that assertion.
Non-molestation orders: the judge in the case noted that Network Homes ‘will have well in mind’ points relating to the relevance of non-molestation orders and the history of the perpetrator. In future Network Homes should consider whether a non-molestation order is enough to protect a survivor (they cannot assume it is) and must instead consider the history and nature of the of the perpetrator’s conduct towards the applicant and their children.
Requirement to provide police or MARAC reports: the court clarified that Network Homes’ policy on management transfers does not require a police report or MARAC report be obtained in every case.
We’re in the High Court today for a hearing on a judicial-review challenge our client is bringing against Network Homes.
The challenge relates to the housing association’s refusal to allow T, a domestic abuse survivor, to move to new accommodation where she and her children will be safe. The court will also consider in what circumstances judicial review challenges can be brought against housing associations.
In the latest in our series of Q&As on PILC legal cases, we outline the basis for the challenge and explore the wider issues raised by our client’s case.
What’s the issue?
T lives with her children in a flat that she rents from the housing association Network Homes. T’s ex-partner was physically and emotionally abusive both during and after their relationship and continues to present a risk to T and her children.
In early 2021 T applied for a management transfer that would allow her to move to new accommodation where she and her children would be safe. (A management transfer is when a local authority or housing association allows a tenant to transfer to new accommodation because of exceptional circumstances.)
In July Network Homes refused to grant T’s request.
Why is this a problem?
T has bravely taken steps to protect herself and her children from further abuse by engaging with domestic abuse charities, seeking civil protective orders and now by requesting a move. Network Homes’ refusal to grant her a management transfer means she and her children remain at risk from her ex-partner.
The housing association’s own policy states that the ‘exceptional circumstances’ that might lead to a request for a management transfer being granted include ‘[where] there is a severe or immediate risk to life or personal safety of a […] resident because of domestic violence, harassment, hate crime, safeguarding issues or [if they become the] victim of a serious crime.’
But they have said that the domestic abuse in T’s case does not meet their threshold, outlined in a sub-policy, of constituting a ‘threat to life and limb’. They have suggested she could instead seek a civil injunction against the perpetrator (which she has done) and report any new incidents of abuse to the police.
Are other people experiencing this same problem?
Yes. Councils and housing associations across London are imposing excessively high thresholds when it comes to survivors’ access to management transfers. This is despite the passage of the Domestic Abuse Act 2021, which provides a statutory definition of domestic abuse going beyond physical violence and was designed to make it easier for survivors to retain secure tenancies.
What are the legal grounds of our challenge?
We are arguing that Network Homes’s decision to refuse our client’s application for a management transfer on the basis that ‘she was unable to provide any evidence of threats to life or limb’ is unlawful because it takes an excessively restrictive view of domestic abuse, limiting it to acts of physical violence. We say that the housing association’s decision goes against its own published policy.
Network Homes have claimed that T ‘could approach the police or local authority to take more immediate and effective action’ as an alternative to the housing association moving her to new accommodation.But when T did approach her local authority, it confirmed that it supported her application for a management transfer. There was no suggestion that the council could or would accommodate her instead.
In our view, expecting survivors to approach their local authority places them in the invidious position of having to choose between their current stable accommodation and taking their chances with whatever (likely precarious) accommodation the council may provide.
Finally, Network Homes’ sub-policy requires domestic abuse cited in support of an application for a management transfer to have been reported to the police or a MARAC. We are arguing that this is both irrational and indirectly discriminatory.
It is irrational, in our view, because of the widely acknowledged fact that many survivors do not report abuse to the police or other public authorities. Therefore, the absence of a police or MARAC report does not indicate an absence of risk.
It is discriminatory, we say, because women are disproportionately likely to face domestic abuse and abuse is often not reported. Therefore, whilst it may be rational to require evidence from the police or other relevant authorities when considering applications for transfers not based on domestic abuse, the requirement places survivors of domestic abuse at an unfair disadvantage.
What are the wider issues raised by this challenge?
It is our view that housing associations fulfil a public function by providing social housing. They receive public funding in order to do so. As such, the safety of domestic abuse survivors should be paramount in the decisions they take.
Social housing providers should not be taking so narrow a view of domestic abuse as to grant the vital safety measure of a management transfer only to survivors who can prove they have experienced a ‘threat to life or limb’.
Domestic abuse survivors seek management transfers in order to remain safe whilst retaining security of tenure. The message Network Homes’ decision in this case sends to survivors is that they should either seek homelessness assistance from the local authority, move into the private sector, or remain in an unsafe home. All of these options are likely to result in reduced safety and security for survivors and their children.
From the decision in a case known as Weaver, the relevant question is whether the act under scrutiny is a private act. To determine that, it will be necessary to examine the nature of the act in the context of the body’s activities as a whole.
We are arguing that Network Homes’s decision in this case, and its policies relating to transfers, are amenable to judicial review. We do not believe that a decision concerning the transfer of a social housing tenancy can be a private act.
Please check back for updates about this case in the coming weeks.
Today sees the launch of the Domestic Abuse and Housing Forum (DAHF), created by PILC in response to the increasing obstacles domestic abuse survivors face when seeking housing support from local authorities.
In our latest blog, legal caseworker Isabella Mulholland explains what the forum will do and why it’s needed.
For the last three years, I’ve been working with domestic abuse survivors to support them to access safe housing. Before coming to PILC as a legal caseworker, I was a homelessness advocate worker in a winter night shelter. In both roles I’ve been struck by the multiple barriers survivors must overcome in order to assert their basic right to a safe and suitable home.
When survivors flee, they are at their most vulnerable. Yet when they seek help from local authorities at this crucial time, housing officers routinely provide inaccurate information about their rights and options. This deliberate (and often unlawful) gatekeeping is a systemic problem across local authorities and spans both homelessness and longer-term accommodation provision.
The Domestic Abuse Act 2021 contains a number of provisions that may help survivors (we wrote a briefing about the act earlier this year), but it will not address the deep-rooted culture of disbelief and gatekeeping that exists in local authorities. It will also do nothing to support those with no recourse to public funds (NRPF), who remain barred from access to local authority housing.
Moreover, lawyers are often unaware of the daily obstacles survivors face when trying to access housing support, while frontline workers often struggle to find legal advice or representation. The few lawyers working in the area are inundated with cases.
We hope the new Domestic Abuse and Housing Forum (DAHF) will help tackle some of these issues. Through the forum we want to create a network of frontline DV workers, homelessness advice workers, housing and public lawyers and campaigners who will support one another to tackle local authority gatekeeping in cases of domestic abuse.
DAHF will allow domestic abuse advocates and other frontliners to access second-tier legal advice on their cases and refer their clients for formal legal representation. It will also be a space where updates and resources can be shared.
Quarterly meetings will see DV workers, campaigners and lawyers come together to discuss, and hopefully tackle, the systemic barriers facing survivors who need support from their local authority.
DAHF will only be as strong as its membership. For the forum to be successful, it will need the right mix of frontline workers and campaigners supporting survivors and lawyers who can take on legal cases.
That’s why we’re asking our friends and partners to share information about DAHF as widely as possible, particularly among housing and public lawyers, and in advice and legal aid ‘deserts’. In many parts of the country there are no housing legal aid providers, and we hope the new forum will help frontliners in those areas access robust legal support.
Domestic abuse survivors should not have to face constant barriers when seeking a safe home. We hope that by pooling our resources, we will be better able to tackle the unjust practices that currently prevail across many local authorities.
We will be providing updates on the activities of the forum throughout 2022. To join DAHF or for more information, please email email@example.com
What can we expect from the government’s £76m funding pot to support survivors?
A decade of austerity has led to a severe lack of funding for domestic abuse services and a shortage of safe accommodation for those who flee. Specialist organisations have been pushed to breaking point. For survivors, the risk of ill-treatment and even death has increased as a result.
As the UK went into ‘lockdown’, the Violence Against Women and Girls (VAWG) sector raised concerns about the increased risk of domestic abuse and the urgent need for funding to ensure effective access to safe accommodation during the pandemic. The sector also raised concerns about the disproportionate impact on disabled, working-class, BME and migrant women.
A flurry of open letters were sent to government demanding additional money for domestic abuse services and accommodation. PILC, Solace and more than fifty other organisations wrote to MHCLG. Southall Black Sisters (SBS), Solace, the End Violence Against Women Coalition and others wrote to the prime minister. SBS and Compassion in Politics coordinated a letter to the Chancellor of the Exchequer. Finally, the Step Up Migrant Women campaign, a coalition of more than 40 specialist BAME and migrant frontline services, domestic abuse services, social-justice and human-rights organisations, wrote to Priti Patel calling for emergency support to help migrant victims of domestic abuse during the pandemic.
When it became clear that no adequate response was forthcoming, PILC, acting on behalf of Southall Black Sisters and Solace, launched a campaign and legal challenge against the government’s failure to support domestic abuse survivors during Covid-19. Over 750 people sent emails to Priti Patel and Robert Jenrick in support of our campaign.
On 2 May 2020, apparently in response to this sector-wide campaign and the accompanying threat of legal action, the government announced an additional £76m to support survivors of abuse.
How the £76m breaks down
In total £10m has been allocated to safe accommodation services, with £25m going to help survivors of domestic and sexual abuse access services during the pandemic. £0.7 million will support organisations that provide support to kinship carers, foster carers or to adoption and care leaver provision. £3m per year until 2022 will fund the work of Independent Sexual Violence Advisers, and a further £3.8m will go to community-based domestic-abuse and modern-slavery services and charities.
The Home Office has also promised £7.8 million in emergency support for charities helping vulnerable children who have been impacted by the coronavirus outbreak, including children at risk of sexual abuse and criminal exploitation. The Department for Education has pledged more than £26.35 million to support vulnerable children, which will go towards supporting the families of disabled children and work to safeguard groups including care leavers and children in the early years.
This funding commitment is a welcome concession. But the fight is far from over. It remains to be seen whether the £10 million allocated to safe accommodation services will be sufficient to cater to the ever-increasing demand, or whether the government will prioritise those organisations that need it most, including BME and migrant-specialist organisations.
Will the government provide adequate funding for services led ‘by and for’ BME women? Or will these vital services be overlooked as they so often are by current funding streams?
Domestic abuse impacts women across society. But those without the financial or physical means to leave are disproportionately affected. BME and migrant women face structural barriers to accessing support when they experience domestic abuse. As a result, they experience higher rates of domestic homicide and are three times more likely to commit suicide than other women in the UK. Some 50% of BME and migrant-women victims of violence experience abuse from multiple perpetrators.
Survivors with insecure immigration status are often prevented from accessing safe accommodation. Women with No Recourse to Public Funds (NRPF) are not eligible for most refuge provision. Under usual circumstances, migrant women on spousal visas can apply for the Destitution Domestic Violence Concession (DDVC), allowing access basic benefits and social housing. But under pandemic conditions, accessing the DDVC will be practically difficult, especially for those women forced to self-isolate with perpetrators. Women with NRPF who are not on spousal visas are barred from applying for the DDVC altogether.
Insecure immigration status is also a significant barrier to the disclosure of domestic abuse. Many migrant women are justifiably fearful that if they report abuse to the police or seek medical assistance, they could be penalised, detained or even deported. This allows some perpetrators to use their partner’s immigration status as an additional form of coercive control.
We know from discussions with specialists BME and migrant organisations that, behind closed doors, the Home Office has acknowledged the NRPF requirement to be a structural barrier preventing migrant women seeking protection and support when they experience domestic abuse. If that is the case, the government’s lack of protection for migrant women in the context of Covid-19 is even more scandalous.
The £76 million pledged by the Home Office is a step in the right direction. But on its own this money it will do nothing to ensure that all migrant women who suffer abuse can access safe accommodation, regardless of their immigration status. We must continue to fight to ensure that the government prioritises those organisations that need it most, and BME- and migrant-specialist services in particular. We must also push hard for the abolition of NRPF so that nobody’s life is put in danger for want of the right papers.