Domestic Abuse Bill

Debate between Baroness Burt of Solihull and Lord Young of Cookham

Report stage
Monday 15th March 2021 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I begin by commending my noble friend Lord Randall for the case he made for Amendment 66B. I look forward to the Minister’s reply on that. The case for Amendment 87C was capably made in Committee by a number of noble Lords and reinforced today by the noble Baronesses, Lady Deech, Lady Warwick and Lady Bennett. I will not repeat it, except to gently remind the Minister that in Scotland they have gone further than our modest amendment in giving security to victims of domestic abuse, even when they are not a joint tenant.

I want to focus on what has happened since Committee, and begin by thanking my noble friend Lord Parkinson for his patient and sympathetic approach in seeking to find a way forward. In his wind-up speech in Committee, he recognised that our amendment would simplify the current complex and uncertain legal mechanism available to victims, and would prevent perpetrators from exerting control over a victim. That was enormously helpful.

In our letter dated 15 February, we sought to address the concerns that he expressed on five separate issues. In particular, we amended the section on responsibility for arrears to clarify that the perpetrator remains liable for arrears before the joint tenancy is terminated. Then we added subsection (11) to the new clause proposed by the amendment, to give the Government time to assess progress in Scotland. We had a meeting with my noble friend earlier this month, for which again I am grateful, and he replied to our letter last week, in which he repeated his sympathy for the motives behind the amendment.

So where do we go from here? If there are defects in our drafting, we know that the Bill will go back to the other place, so there will be an opportunity for the Government to tidy it up. My preferred solution would be for the Government to accept the amendment, tidy it up in the other place and implement it as soon as it is successfully rolled out in Scotland.

I would understand the disappointment if the Government were to resist but, if they do, with some reluctance I would consider the more cautious approach suggested in my noble friend’s letter and referred to by the noble Baroness, Lady Deech, in her opening speech—namely consultation. I am not entirely convinced that this is necessary but, subject to some strict conditions—an early start date, a reasonable but not protracted time for consultation and a decision by the Government by the autumn—the proposition is worth reflecting on. The option would be even more attractive if there was also a commitment to include the necessary measures in the first relevant piece of legislation, be it on rights for renters or leasehold reform, both of which are likely to feature in the next Session. I will listen with more than usual attention to my noble friend’s response at the end of this debate, before deciding how best to proceed.

[Baroness Burt of Solihull (LD)]

My Lords, first, I am happy to add my support to Amendment 66B in this group, from the noble Lord, Lord Randall. I am somewhat mystified as to why it was not included with Amendment 66A, to which I also added my name but was not present in the House at the beginning of the debate to speak to it. I take this opportunity to apologise to the noble Lord and the House for this confusion on my part. I hope that the Minister will enlighten the House as to why Amendments 66A and 66B were not dealt with together.

Just as Amendment 66A concerned hard-pressed authorities using their local connection rules to deny refuge places to victims and their families fleeing to another area, Amendment 66B deals with another criterion, “qualified persons” who want more permanent accommodation in their new area. Guidance is not a requirement and guidance is not enough. The case study given by the noble Lord, Lord Randall, speaks more eloquently than anything I could say in cogently making this point.

I have also added my name to Amendment 87C on joint tenancies. The noble Baroness, Lady Deech, explained the amendment well, including the human rights implications. I start by expressing my gratitude to the Minister for the lengths that he and his team have gone to in investigating the practicalities of this amendment. I have no doubt of his sympathy for what it seeks to achieve.

The supporters of the amendment, assisted by Women’s Aid lawyers, have further amended our amendments proposed in Committee, in accordance with the points that the Minister made to us subsequently, including liability for debt if the perpetrator is removed from the tenancy, the interests of third parties and the interests and rights of the perpetrator.

In subsequent discussions with us, the Minister said that the Government would like time to assess how the implementation of a plan in Scotland similar to that which we propose will fare. But there are three issues with this. First, the changes in Scotland are not the same; they are much wider ranging than our comparatively modest proposal, so they will not be comparing the same thing. Secondly, property law is different in Scotland, so that will have to be factored in. Thirdly, it could take years before the implementation of the Scottish version is fully assessed. If it is or is not successful, how much will that tell us, given the differences that I outlined in the first and second points? We could potentially lose a huge amount of time for very little gain, given the prospect of a suitable Bill coming as a vehicle to implement it.

More promisingly, the Minister has offered a public consultation to help resolve some of the technical issues that he has raised in meetings and correspondence with us. This would bring interested parties from all sides of the argument to contribute and work together to find a solution fair to all. I am attracted to this idea, because I acknowledge that we are treading in quite a legally complex area, which incorporates several different aspects of the law. He tells us, in his most recent letter, when the consultation will start—this summer—but not when it will end, and he has not indicated any further steps to be taken and when they might take place.

Having been a Member of your Lordships’ House and the other place for over 15 years now, I have watched many times in frustration as consultations drag on for years, eventually for so long that the proposals under question can be forgotten and quietly dropped. So, if this kind offer of consultation is accepted, we would need some assurances on time. For example, an assurance that the Government would strive to have proposals in place in time for the next piece of appropriate legislation—say, for example, the renters Bill. The noble Baroness, Lady Warwick, reinforced the important role that housing associations and social landlords can play. Could the Minister give the House this assurance today?

Domestic Abuse Bill

Debate between Baroness Burt of Solihull and Lord Young of Cookham

Committee stage & Committee: 6th sitting (Hansard) & Committee: 6th sitting (Hansard): House of Lords
Wednesday 10th February 2021 Lords Chamber

[Baroness Burt of Solihull (LD) [V]]

My Lords, I am exceedingly grateful to the noble Lords, Lord Young of Cookham and Lord Kennedy of Southwark, and the noble Baroness, Lady Deech, for supporting this amendment and making it cross-party. There are few things in the unjust world of domestic abuse that make me more angry than a perpetrator driving the victim and their children out of the family home. This amendment seeks to address this injustice for joint tenancies in a secure or assured tenancy, where the landlord is a local authority or a private registered social landlord—I would make it wider if it were possible under the law as it stands.

As things stand, it is very difficult and costly for a victim in a jointly tenanted home to get the tenancy transferred to them if the perpetrator does not agree. For the purposes of simplicity, I am going to use the pronoun “he” for the perpetrator and “she” for the victim, but of course there are circumstances where it is the other way round. They could also be a same-sex couple.

Until the perpetrator’s name can be removed from the tenancy agreement, the victim will never achieve the security she needs. She cannot change the locks or restrict his access. She can seek a temporary court order to remove him from the property but when that expires, he has the right to return. The perpetrator can give notice to end the tenancy without the survivor’s consent or even knowledge, even though he no longer resides there. Unless he signs away his interest in the tenancy, her only recourse as things stand is to embark on costly court proceedings, which are complex and tortuous. Social housing providers, much as they might wish, have no legal mechanism to evict perpetrators and support survivors to stay in the tenancy. A number of creative methods have been tried, but these use legal mechanisms for which they were not designed.

For all those reasons, all too often the victim ends up fleeing the family home, leaving the perpetrator ensconced while she ends up homeless, often in a refuge with no resources to enable her to start again except emergency assistance from the state. It makes my blood boil even thinking about it.

This new clause aims to resolve the problem, at least as far as secured and assured social tenancies are concerned. Three family law and housing experts, Giles Peaker, Justin Bates and Jenny Beck, developed the solution which I am proud to lay before the Committee today. It provides a simplified mechanism for transferring a joint tenancy into the hands of the victim as a sole tenancy. It utilises other mechanisms in the Bill, domestic abuse protection orders and notices, as well as existing mechanisms such as restraining orders, occupation orders and non-molestation orders, which can remove the perpetrator from the home temporarily. The breathing space created when the perpetrator is out of the home can be used to transfer the tenancy permanently to the victim, so when the order expires, he is no longer legally able to return.

Subsection (4) of the proposed new clause describes the conditions under which a domestic abuse transfer of tenancy order can be granted by the court. The new sole tenant must be able to afford the rent or have expectations of being able to do so in a reasonable amount of time. The court must make the order if the perpetrator is subsequently convicted of domestic abuse. It may make an order if a domestic abuse protection order or notice, injunction or restraining order has been issued. Even if none of these conditions applies, or the victim has already fled the property, the court may still make the order. If the perpetrator does not object to the order the court must make the order. If he objects, the onus is on him to make the case that there are exceptional circumstances why he should stay.

That is the gist of it. No doubt other noble Lords will have points to make which are more learned and informed than someone with no legal training like me, but I must say that it looks to me like an elegant and equitable solution. No doubt the Minister may have some legal reservations, but all I ask at this stage is for him to take it away, think about it and come back at Report—with, I hope, an even more elegant solution of the Government’s making. I beg to move.

[Lord Young of Cookham (Con)]

My Lords, I have added my name to the amendment, which now has support from all four corners of the House. I add a brief footnote to the compelling case just made by the noble Baroness, Lady Burt. This is a rather modest amendment, as it covers only the transfer of a tenancy where the victim is a joint tenant. A more radical but perfectly defensible amendment would have proposed the transfer of the tenancy where the perpetrator was the sole tenant and the victim was living lawfully in the property as a spouse or partner, but not as a joint tenant. I should have been happy to sponsor such an amendment—with adequate safeguards, of course.

Once again, we find that Scotland has stolen a march on England with its amendment to its domestic abuse Bill. That amendment enables either the social landlord or the survivor/tenant to do just what I have said: to seek a transfer of tenancy through a court order. It can transfer a sole tenancy in the perpetrator’s name into a sole tenancy in the survivor’s name. Our amendment is more modest and proposes that the survivor can apply for a transfer of tenancy through the county court only if it is a joint secured or assured social tenancy, shared with the perpetrator. Of course, in those circumstances, the tenant is already known to and approved by the landlord.

The amendment is one of the domestic abuse commissioner’s top recommendations. At a round table last month with the Chartered Institute of Housing, Shelter, the National Housing Federation and the National Federation of ALMOs, there was unanimous support for this initiative. Since the A New Deal for Renting consultation in 2019, the organisation Standing Together Against Domestic Abuse, to which I am grateful for its briefing, has regularly met the department about joint tenancies and discussed the amendment. The organisation has sought to address the concerns expressed in the letter that the Minister, my noble friend Lady Williams, sent to us, which stated that

“there are good practical and principled reasons for the rules which seek to balance the rights and interests of each tenant and the landlord.”

I shall quickly go through those rights and interests. Those of the social landlord would be basically unchanged because the nature of the tenancy agreement would stay the same. The rights of the tenant-survivor would also stay the same by their retaining the right to continue to live safely in their home. The rights of the perpetrator would, of course, be affected, and I agree that we should be cautious about making anyone homeless. However, in the circumstances to which the Bill applies, we have to strike a balance. If the perpetrator leaves, he may indeed face homelessness, probably as a single person. But if he does not, the innocent party and any children would also face either homelessness or continuing harm by staying put.

The amendment provides that where there is such a dispute and this balance has to be struck, the matter should be resolved by the county courts, which would hear both sides of the case before reaching a judgment. If a perpetrator loses but remains in the property, the normal eviction process would take place. However, in many cases, he may already have left due to a domestic abuse protection order, a restraining order or an occupation order, or he may have done so voluntarily. Under the amendment, the courts would have to define affordability, but this is something they already do, and it would be based on the survivor’s income and access to benefits to cover the rent.

There are further injustices in the present position, which were touched on by the noble Baroness, Lady Burt. At the moment, the perpetrator can leave the property and then unilaterally end the joint tenancy. That cannot be right. He can stop the survivor accessing housing benefit because his income is taken into account, but he will not be paying. As we have heard, the survivor cannot change the locks without the perpetrator’s consent. Without the amendment, if the perpetrator does not leave, the survivor has to resort to costly legal proceedings. That cannot be right, either, because it can take up to two years to complete the process and, depending on legal aid, can cost up to £10,000.

I therefore hope, as the noble Baroness, Lady Burt, has just said, that the Minister will listen sympathetically to the case made this afternoon and indicate that there is some flexibility in the position that the Government have adopted so far.