Closed consultation

Consultation on the impacts of joint tenancies on victims of domestic abuse

Published 15 February 2022

Applies to England

Scope of the consultation

Topic of this consultation:

The Department for Levelling Up, Housing and Communities is seeking views on the impacts of the law on joint tenancies on victims of domestic abuse in the social rented sector. We are interested in whether:

• perpetrators are using their ability to end a joint tenancy to threaten the victim with homelessness;
• victims feel trapped in their joint tenancy with the perpetrator;
• the current guidance for social landlords is sufficient to support victims in joint tenancies; and
• the law on transferring joint tenancies is functioning successfully for victims.

Scope of this consultation:

We are gathering evidence from victims, landlords, the legal profession, advisory services and other organisations and individuals associated with the domestic abuse sector with an understanding of the issues impacting victims in joint social housing tenancies.

The consultation will focus on social sector tenancies given the complexity of the issues to be explored and the interaction social landlords have with responsibilities and duties on domestic abuse.

Geographical scope:

The consultation will focus on the social rented sector in England, however we have looked to other jurisdictions in the UK for reference. In Scotland, the Domestic Abuse (Protection) (Scotland) Act 2021 provides for a new possession ground which would allow for termination of Scottish secure tenancies in cases involving domestic abuse.

Basic Information

Body/bodies responsible for the consultation:

The Department for Levelling Up, Housing and Communities.

Duration:

This consultation will last for 12 weeks from 15 February to 10 May 2022.

Enquiries:

For any enquiries about the consultation please contact: domesticabuseconsultations@levellingup.gov.uk

How to respond:

You may respond by completing an online survey

Alternatively, you can email your response to the questions in this consultation to:

domesticabuseconsultations@levellingup.gov.uk

If you are responding in writing, please make it clear which questions you are responding to.

Written responses should be sent to:

Social Housing Allocations Team
Department for Levelling Up, Housing, and Communities
3rd Floor, Fry Building
2 Marsham Street
London
SW1P 4DF

When you reply it would be very useful if you confirm whether you are replying as an individual or submitting an official response on behalf of an organisation and include:

• your name,
• your position (if applicable),
• the name of organisation (if applicable),
• an address (including post-code),
• an email address, and
• a contact telephone number

Please also confirm whether you agree to be contacted in relation to any of the answers you have provided.

1. Introduction

Background

1. The government is committed to doing everything it can to address the needs of survivors and victims of domestic abuse. During the passage of the Domestic Abuse Act 2021 (“the Act”) we committed to consult on the impacts of joint tenancy law on victims in social housing. As part of this commitment, we have been considering ways to better support victims and empower them to make choices that are best for them.

2. The Act, which received Royal Assent on 29 April 2021, provides protection to people who experience domestic abuse and strengthens measures to tackle perpetrators. Victims with lifetime social housing tenancies who ended their previous tenancy to escape domestic abuse will now have protections for the security of a future social housing tenancy. And an important new duty has been placed on local authorities in England to provide accommodation-based support to victims of domestic abuse.

3. These protections make mandatory the suggestion in our guidance that landlords should ensure that where they are offering further tenancies to existing lifetime social tenants as a result of domestic abuse, such tenancies are granted on a lifetime basis.

4. Nonetheless, the issues faced by victims continue to be challenging: domestic abuse is one of the top three causes of homelessness.^{[footnote 1]} Although providing victims with temporary shelter in refuges is a vital escape route for victims who are not able to remain safely in their homes, having to flee the home brings significant insecurity and disruption for victims and their families – remaining in the home can be preferable.

5. Our ambition is to empower victims with the ability to decide what is best for them: remaining in their own home or moving to another home. This consultation will gather evidence on the problem faced by victims who share a joint social housing tenancy with their abuser and who wish to remain in their own home, without the perpetrator.

6. We will also gather evidence on whether, in this scenario, victims are being threatened with homelessness due to their joint-tenant-perpetrator serving a notice to quit the tenancy, or breaching the conditions of the tenancy.

Executive summary

7. We understand it is often the perpetrator of domestic abuse who remains in the family home, whilst victims go through the upheaval of moving to other accommodation. Yet it is not always the case that victims would prefer to flee rather than remain in the family home. They may not, however, have this choice.

8. The current law on joint tenancies mean that periodic social housing tenancies can be ended by either tenant, without the consent of the other. Periodic social housing tenancies are those where the tenancy is not contracted for a fixed period. Victims who are in a joint periodic tenancy with their abuser can be vulnerable to the threat of being made homeless by their perpetrator. For more information on how the issue differs according to the type of tenancy, see Table A below.

9. Even where an abuser has left, or been excluded from, the family home, the victim and household are at risk of having the tenancy terminated by the abuser. If a tenancy is terminated, the victim and any remaining tenants would have to leave their home.

10. Should the victim want to stay in the family home on their current tenancy, unless both landlord and perpetrator agree to transfer the tenancy, the victim must take legal action to remove the abuser from the tenancy and remove the risk of homelessness.

11. The law on joint tenancies differs depending on the type of tenancy, so this is not the case for all types of social housing tenancies. There are tenancies that can leave victims vulnerable to being trapped in the home with their abuser, meaning they can be liable for rent arrears or damage to a property that they no longer wish to live in.

Table A sets out the different social housing tenancy types and the risk to victims of domestic abuse

	Flexible/Fixed Term Tenancies	Periodic/Lifetime Tenancies
Secure Tenancies, given by a local authority landlord under the Housing Act 1985	In secure flexible tenancies, victims of domestic abuse are not at risk of being homeless, but are at risk of being trapped in the tenancy.	In secure periodic tenancies, victims of domestic abuse are at risk of being made homeless, but are not at risk of being trapped in a tenancy.
Assured Tenancies and Assured Shorthold Tenancies, given by a private registered provider under the Housing Act 1988	In fixed term tenancies, victims of domestic abuse are not at risk of being homeless, but are at risk of being trapped in the tenancy.	In assured periodic tenancies, victims of domestic abuse are at risk of being made homeless, but are not at risk of being trapped in a tenancy.

12. The government has been carefully considering these issues, helped by individuals and organisations in the domestic abuse sector. To support this consideration, we are consulting to collect evidence on this important but complex issue to consider the best approach. During the passage of the Domestic Abuse Act 2021 government committed to carrying out a public consultation to:

i. better understand the complex legal and practical issues;

ii. ensure that all relevant interests are considered – including those of the domestic abuse sector, victims, perpetrators, and landlords; and

iii. ensure that any solution has the desired aim of improving the protection for victims of domestic abuse.

Gathering evidence

13. We have some evidence on the scale of the problem. We know that domestic abuse is one of the top three causes of homelessness: 11.6% of households recorded ‘domestic abuse’ as their main reason for being homeless or threatened with homelessness in 2020/21.^{[footnote 1]}

14. We are also aware that domestic abuse is a significant cause of ending social housing tenancies. Between the years 2017/18 and 2019/2020, 6% of all new social housing lettings were to existing social tenants who gave ‘Domestic Abuse’ as the main reason they left their previous social home.^{[footnote 2]}

15. We intend to build on this evidence base to understand how many victims of domestic abuse, who share a joint social housing tenancy with their abuser, have been threatened with homelessness or eviction. We also want to understand how many victims would wish to remain in their own home rather than moving to a new home.

2. Initial questions

These questions are intended to help gain a more precise picture of the demographics of domestic abuse victims to enable a better understanding of the potential equalities impacts on those with protected characteristics.

Q1: Please could you select the following option that most applies to you:

• Victim of domestic abuse
• Family member of a victim of domestic abuse
• Local authority landlord
• Private registered provider of social housing
• Legal professional
• Professional in the domestic abuse sector
• Other (please describe)
• Prefer not to say

Q2: Please could you select one of the following options that best describes your sex:

• Female
• Male
• Prefer not to say

Q3: Please could you select one of the following options that best describes your ethnic group:

• White
• Mixed or Multiple ethnic groups
• Asian or Asian British
• Black, African, Caribbean or Black British
• Other ethnic group
• Prefer not to say

Q4: Do you have a disability that is defined under the Equality Act 2010?

• Yes
• No
• Other
• Prefer not to say

Q5: What is your religion or belief? Please specify below:

• Prefer not to say

Q6: Do you have any children aged under 18 who live in your home with you?

• Yes
• No
• Prefer not to say

Questions for victims of domestic abuse

Q7: Have you ever shared a social home with your abuser?

• Yes
• No
• Don’t know

Q8: Were / are you in a joint tenancy with your abuser?

• Yes, I was / am in a joint tenancy with my abuser
• No, I was the sole tenant on the tenancy
• No, my abuser was the sole tenant on the tenancy
• Don’t know

Q9: What type of tenancy did you share / are you sharing with your abuser?

• Fixed period (e.g. 2 – 5 years)
• Lifetime
• Other (please provide details)
• Don’t know

Q10: How long have you shared your current social home with your abuser?

• Less than 1 year
• 1 – 3 years
• More than 3 years
• Don’t know

Q11: What type of landlord provides your tenancy?

• Local authority
• Private registered provider (e.g. a housing association)
• Other (please provide details)
• Don’t know

Q12: Have you ever had to flee the property you share with your abuser to escape domestic abuse?

• Yes
• No
• Other (please explain)

Q13: Have you ever had any issues arise from sharing a social home that you did not want to leave with your abuser? Please select all the following that apply and provide additional details below.

• Your abuser has threatened to end the tenancy without your consent
• Your abuser has ended the tenancy without your consent
• Your abuser has caused damage to the property and/or rent arrears
• None of the above
• Please provide details.

Q14: Have you ever been evicted by your landlord for reasons connected with domestic abuse? If so, please give the reasons for the eviction.

• Yes
• No
• If Yes, please provide details.

Q15: Where do you feel it is safest for you to live if you have, or if you are experiencing, domestic abuse? Please provide details.

3. The current guidance on supporting victims of domestic abuse in joint tenancies

16. Local authorities have powers to take action against any tenants who are perpetrators of domestic abuse, including where they are joint tenants with their victims. For instance, they have power to seek to evict the perpetrator under ground 2A of Schedule 2 to the Housing Act 1985 – which is intended to ensure that someone should not be allowed to benefit from driving their partner from their home by being violent to them.

17. Our current statutory guidance advises that authorities may wish to consider evicting the perpetrator and allowing the victim to remain in their home with a new tenancy agreement. In addition, where one joint tenant (e.g. the victim) has served a valid notice to quit, and the landlord is made aware that there has been domestic abuse, the landlord has the option of:

a. allowing the victim joint tenant to remain in / return to the property under a new tenancy agreement; or

b. securing possession of the property and offering the victim joint tenant suitable alternative accommodation.

18. The Domestic Abuse Act 2021 has strengthened this protection for domestic abuse victims. It introduced an amendment to the Housing Act 1985 ^{[footnote 3]} requiring landlords to grant a lifetime social housing tenancy to a victim of domestic abuse after obtaining repossession of the property, if they were previously in a lifetime tenancy and if they give them a new tenancy for reasons connected with the abuse. This could either be a tenancy in the same property or a suitable alternative property.

Questions for all

Q16: Do perpetrators of domestic abuse use the threat of terminating a joint tenancy as a form of abuse?

• Never
• Sometimes
• Often

If they do, please provide additional information to support your answer.

Q17: Please provide your views on how effective the current means available to landlords to support victims in joint tenancies, as set out above, are. Please consider details such as:

• whether the current means available to landlords, as set out above, provide enough support for victims, and how the guidance could be improved to clarify the support that can be provided;
• any difficulties landlords may face and how to resolve them by strengthening the guidance; and
• any other ideas on how the current means could be improved.

4. The current legal framework

19. If the above means have not adequately provided the victim with the support they need, and if they want to continue the tenancy and remain in the family home in the long-term, the victim’s only option is to take legal action. This section provides a brief overview of the measures available in the family court.

Temporary measures

20. There are legal mechanisms that exist to temporarily protect victims of domestic abuse so they can remain in their home.

• Occupation orders can be made by the family court to restrict the perpetrator from living in the home. The court can also attach other conditions to the order, such as imposing obligations as to who is responsible for paying the rent.

• Temporary injunctions can prevent the perpetrator from serving a notice to quit the tenancy in the short-term; thus, stopping them from using the threat of ending the tenancy to exert control over the victim.

Tenancy transfer

21. There are also legal mechanisms by which the victim can apply to the family court for an order to permanently transfer the tenancy to themselves, including for the benefit of a child. However, the circumstances in which victims can apply for a tenancy transfer using these mechanisms vary.

• Under the Matrimonial Causes Act 1973, and similar provisions of the Civil Partnership Act 2004, a joint tenant can make an application for a property adjustment order to transfer the tenancy within the context of divorce or dissolution proceedings.^{[footnote 4]}

• Under the Family Law Act 1996, a victim can make an application for the tenancy to be transferred as part of divorce or dissolution proceedings, or if the parties are unmarried but have ceased to cohabit.^{[footnote 4]}

• Under the Children Act 1989 the victim can make an application for transfer of tenancy rights, however such an order is primarily made for the benefit of a child or children.

22. The courts will take into consideration a range of factors when making an order to transfer a tenancy; the list below is not exhaustive and will depend on the circumstances of the case. A court making an order for transfer under the Family Law Act must take into account considerations such as:

• circumstances in which the tenancy was granted;
• suitability of the parties as tenants;
• housing needs and resources of each of the parties and relevant children;
• financial resources of each of the parties; and
• likely effect of any court decision on the health, safety and well-being of the parties and any relevant child.

23. The court also has powers, when making an order to transfer the tenancy, to ensure the perpetrator remains liable for any rent arrears or damage to the property, in situations where this would be appropriate.

Legal aid

24. Legal aid is available to victims applying for these orders in the family court, however conditions apply. To qualify for legal aid, the victim must generally be able to demonstrate they have experienced domestic abuse with one of the prescribed acceptable forms of evidence, and (must have a reasonable likelihood of succeeding in court). They must also be financially eligible – where a victim’s disposable income exceeds £733 a month, they will not be financially eligible for civil legal aid.

25. There is an eligibility waiver for victims applying for emergency injunctions, including occupation orders, which means they can receive legal aid even if they would not otherwise be financially eligible, though they may have to pay a contribution.

26. The government is currently carrying out a review of the means test for legal aid which will specifically consider the experiences of victims of domestic abuse. We plan to publish the review shortly.

27. To understand how victims are using the current legal framework we would like to offer both victims and other relevant parties the opportunity to answer the following questions.

Questions for all

Q18: Have you ever been involved in the process of taking legal action to transfer a joint tenancy due to domestic abuse?

• Never
• Once
• Sometimes
• Often
• Other (please explain)

If yes and known, please detail:

• What your role in the process was (e.g. victim, landlord, lawyer)
• What type of legal action you took
• How long the process took
• Who was involved in the process (please do not use names)
• Whether the legal action was successful
• Any difficulties you faced during the process

Q19: Please provide your views on how successfully the law on joint tenancies functions to enable victims to transfer such tenancies into their own name. Please provide reasons.

If you have views on multiple different legal mechanisms, please separate your reasoning for each.

You could also consider whether and how the law on joint tenancies could / should be changed to support victims of domestic abuse.

Q20: Have you ever taken any (other) legal action, such as obtaining an occupation order, against your abuser? Please include details on why you did / did not take legal action, and your experience of that legal action.

• Yes
• No

Please provide details.

Q21: Please provide your views on how successfully temporary injunctions work to enable victims to prevent perpetrators from serving a notice to quit. Please provide reasons.

Final question for all

Q22: Fixed term tenancies can leave victims at the risk of being trapped in a tenancy with their abuser. Do you have any experience or evidence of this issue? Please provide details, including whether you have any ideas for how to solve the issue.

See table A for more information on the types of tenancies.

About this consultation

This consultation document and consultation process have been planned to adhere to the Consultation Principles issued by the Cabinet Office.

Representative groups are asked to give a summary of the people and organisations they represent, and where relevant who else they have consulted in reaching their conclusions when they respond.

Information provided in response to this consultation may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Environmental Information Regulations 2004 and UK data protection legislation. In certain circumstances this may therefore include personal data when required by law.

If you want the information that you provide to be treated as confidential, please be aware that, as a public authority, the Department is bound by the information access regimes and may therefore be obliged to disclose all or some of the information you provide. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Department.

The Department for Levelling Up, Housing, and Communities will at all times process your personal data in accordance with UK data protection legislation and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties. A full privacy notice is included below.

Individual responses will not be acknowledged unless specifically requested.

Your opinions are valuable to us. Thank you for taking the time to read this document and respond.

Are you satisfied that this consultation has followed the Consultation Principles? If not or you have any other observations about how we can improve the process please contact us via the complaints procedure.

Personal data

The following is to explain your rights and give you the information you are entitled to under UK data protection legislation.

Note that this section only refers to personal data (your name, contact details and any other information that relates to you or another identified or identifiable individual personally) not the content otherwise of your response to the consultation.

1. The identity of the data controller and contact details of our Data Protection Officer

The Department for Levelling Up, Housing and Communities (DLUHC) is the data controller. The Data Protection Officer can be contacted at dataprotection@levellingup.gov.uk or by writing to the following address:

Data Protection Officer
Department for Levelling Up, Housing and Communities
Fry Building
2 Marsham Street
London
SW1P 4DF

2. Why we are collecting your personal data

Your personal data is being collected as an essential part of the consultation process, so that we can contact you regarding your response and for statistical purposes. We may also use it to contact you about related matters.

We will collect your IP address if you complete a consultation online. We may use this to ensure that each person only completes a survey once. We will not use this data for any other purpose.

Sensitive types of personal data

Please only share special category personal data or criminal offence data if we have asked for it, unless absolutely necessary for the purposes of your consultation response. By ‘special category personal data’, we mean information about a living individual’s:

• race
• ethnic origin
• political opinions
• religious or philosophical beliefs
• trade union membership
• genetics
• biometrics
• health (including disability-related information)
• sex life; or
• sexual orientation.

By ‘criminal offence data’, we mean information relating to a living individual’s criminal convictions or offences or related security measures.

3. Our legal basis for processing your personal data

The collection of your personal data is lawful under article 6(1)(e) of the UK General Data Protection Regulation as it is necessary for the performance by DLUHC of a task in the public interest/in the exercise of official authority vested in the data controller. Section 8(d) of the Data Protection Act 2018 states that this will include processing of personal data that is necessary for the exercise of a function of the Crown, a Minister of the Crown or a government department i.e. in this case a consultation.

Where necessary for the purposes of this consultation, our lawful basis for the processing of any special category personal data or ‘criminal offence’ data (terms explained under ‘Sensitive Types of Data’) which you submit in response to this consultation is as follows. The relevant lawful basis for the processing of special category personal data is Article 9(2)(g) UK GDPR (‘substantial public interest’), and Schedule 1 paragraph 6 of the Data Protection Act 2018 (‘statutory etc and government purposes’). The relevant lawful basis in relation to personal data relating to criminal convictions and offences data is likewise provided by Schedule 1 paragraph 6 of the Data Protection Act 2018.

4. With whom we will be sharing your personal data

DLUHC may appoint a ‘data processor’, acting on behalf of the Department and under our instruction, to help analyse the responses to this consultation. Where we do we will ensure that the processing of your personal data remains in strict accordance with the requirements of the data protection legislation.

5. For how long we will keep your personal data, or criteria used to determine the retention period

Your personal data will be held for two years from the closure of the consultation, unless we identify that its continued retention is unnecessary before that point

6. Your rights, e.g. access, rectification, restriction, objection

The data we are collecting is your personal data, and you have considerable say over what happens to it. You have the right:

a. to see what data we have about you

b. to ask us to stop using your data, but keep it on record

c. to ask to have your data corrected if it is incorrect or incomplete

d. to object to our use of your personal data in certain circumstances

e. to lodge a complaint with the independent Information Commissioner (ICO) if you think we are not handling your data fairly or in accordance with the law. You can contact the ICO on their website, or telephone 0303 123 1113.

Please contact us at the following address if you wish to exercise the rights listed above, except the right to lodge a complaint with the ICO: dataprotection@levellingup.gov.uk or

Knowledge and Information Access Team
Department for Levelling Up, Housing and Communities
Fry Building
2 Marsham Street
London
SW1P 4DF

7. Your personal data will not be sent overseas

8. Your personal data will not be used for any automated decision making

9. Your personal data will be stored in a secure government IT system

1. Live Tables on Homelessness: Detailed Local Authority Level Tables: Financial Year 2020/21. ↩ ↩²

2. CORE 2019-2020 Table 3h. ↩

3. Section 79 - Grant of secure tenancies in cases of domestic abuse, the Domestic Abuse Act 2021. ↩

4. Or proceedings for nullity or judicial separation. ↩ ↩²