The Domestic Abuse Bill and Secure Tenancies for Those Fleeing Abuse

Imagine the following scenario:

A is a secure tenant of a council tenancy and is a survivor of domestic abuse. A decides to flee the abusive household and seeks assistance from the Local Authority to obtain a new secure tenancy outside of the area in order to be safe.

Should be easy, right? Wrong. As the law currently stands, a survivor of domestic abuse who decides to leave their home, risks losing their secure tenancy, which is a precious commodity in current times. They will have ceased to occupy the property as their only or principal home and so the security of tenure is lost and the tenancy can be terminated. A survivor therefore is faced with a choice between remaining in an abusive household or losing their security of tenure. Further, if the survivor was a joint tenant with their abusive partner, that partner will retain the benefit of the secure tenancy alone.

The unfairness of this is clear, as is the danger that this creates a disincentive to leave an abusive relationship, which is the very opposite of what is needed.

Survivors are currently faced with the following options for re-housing:

1. To seek a management transfer from their Local Authority. This is unlikely to be a viable option as in many cases of abuse, their previous home borough remains unsafe for them to live in.

2. To seek a transfer via a reciprocal scheme such as the Pan London Reciprocal Scheme in which secure tenancies in other boroughs can be offered. This is also not an entire solution to the problem at hand as such schemes:

a. Are not statutory or fully regulated.
b. Do not operate in all areas of the country
c. Are often over-subscribed and, as in the case of the Pan London Scheme currently, may close to new applicants.
d. Operate in a way that applicants have little to no control over where they are going to live.
e. Provide no timescale in which properties must be offered.

3. To make a homeless application to another borough. Where a duty to house a homeless person (under s.193 Housing Act 1996) is accepted, the duty can be discharged by offering a secure tenancy but also by making an offer into the private rented sector, meaning that a replacement secure tenancy to those who have had to flee their previous one, is NOT guaranteed.

At the present time, there is a Domestic Abuse Bill which is currently awaiting royal assent and which, amongst many other things, was hoped would address this concerning issue. Indeed in their 2017 Manifesto the Conservative Party pledged to ensure “that victims who have lifetime tenancies and flee violence are able to secure a new lifetime tenancy automatically”.

I have recently had cause to review the text of the Bill in order to advise whether this does indeed rectify the scenario outlined above. S.81 inserts a new section 81ZA into the Housing Act 1985 which states that:

The local housing authority must grant a secure tenancy that is not a flexible tenancy if—

(a) the tenancy is offered to a person who is or was a tenant of some other dwelling-house under a qualifying tenancy (whether as the sole tenant or as a joint tenant), and
(b) the authority is satisfied that— (i) the person or a member of the person’s household is or has been a victim of domestic abuse carried out by another person, and (ii) the new tenancy is granted for reasons connected with that abuse.

On its own this seems to rectify the situation and I have heard anecdotally that a number of domestic abuse charities and advisors have relied upon this wording. But as so often, the devil is in the detail as the above only applies where:

a local housing authority grants a secure tenancy of a dwelling-house in England before the day on which paragraph 4 of Schedule 7 to the Housing and Planning Act 2016 (grant of new secure tenancies in England) comes fully into force

Unfortunately, it would seem that the specific wording of the proposed section limits the circumstances where a person should be offered a new lifetime secure tenancy to those where a tenancy is being granted by the Local Authority themselves. The only real effect of the proposed wording is to ensure that, when offering a tenancy where the potential tenant has lost a secure tenancy through fleeing abuse, the Local Authority’s usual discretion to offer either a lifetime tenancy or a fixed term tenancy does not apply and they must offer the former. Whilst this is a welcome change, it does not go far enough as the section does not place any obligation on the Local Authority to offer the tenancy themselves in the first place meaning that they can continue to discharge the s.193 homeless duty in the same ways as now, eg through the private rented sector.

This interpretation is somewhat at odds with the guidance notes to the Bill which suggest that this new clause requires:

local authorities, when re-housing a person, or offering a person a new sole tenancy in the same home, where that person has or had a “lifetime tenancy” of social housing…. to grant such a person a new lifetime secure tenancy if the person, or a member of their household, is or has been a victim of domestic abuse (as defined by new section 81ZA(4) of the 1985 Act) carried out by another person, and the new tenancy is being granted for reasons connected with that abuse.

It is potentially debateable whether the words “when re-housing a person” could be interpreted to include all discharges of the s.193 duty, including into the private rented sector. This wording is pointedly NOT re-produced in the wording of the Bill itself which mentions only the granting of a secure tenancy and not “re-housing”. If indeed this was intended to include all discharges of duty, then it should have been clearer and reflected in the Bill itself.

This is a highly unsatisfactory situation and may have the very worrying result that victims of domestic abuse will continue to be dis-incentivised from leaving the abusive situation for fear of losing secure and suitable housing. It is very concerning to see that the Bill does not provide the necessary protections. It is unclear whether this was indeed Parliament’s intentions as this certainly does not seem to be the case when one looks at the manifesto promise. I am aware that a number of domestic abuse charities are raising their concerns regarding this issue with the relevant Government bodies and I hope that this will be properly addressed at some stage soon even if not as part of the Domestic Abuse Bill.