During the COVID-19 lockdown there has been an increase in domestic abuse. Therefore, our committed Social Housing and Family departments have joined forces to create a list of possible scenarios tenants might find themselves in, together with some practical advice on what housing organisations can do to help.

You must shy away from giving tenants legal advice but there is no harm in pointing a tenant in the right direction, whilst complying with your organisation’s internal policies and procedures.

We hope you find the below useful and if you have a tenant who needs family legal advice due to domestic abuse, please feel free to refer them to MSB’s family Partners. Their direct lines are:

Dr Emma Palmer 0151 230 4155

Nicola Harris 0151 318 5698

Paula Mansfield 0151 230 4155

Hayley Catherall 0151 230 4148

Scenario 1 – Physical Violence – Joint Tenancy

The house is a joint tenancy in the name of A&B.  A has punched B on at least one occasion. B does not wish to call the police. What can you do? B does not need to involve the police if he or she does not want to. There can be many reasons for not wanting to call the police but that does not mean that protection is not available.

• Your organisation could consider making an application for an Injunction under the Anti-Social Behaviour Crime and Policing Act 2014 (‘the 2014 Act’) to exclude A from the Property. This would however not be a permanent solution as the joint tenancy would still exist.
• If A was excluded from the Property, your Organisation could suggest that B applies for an Injunction Order to stop A serving a notice to quit. This can only be for a limited time and only where there is a realistic prospect of the tenancy being transferred to B (see below).
• If B served at NTQ to end the joint tenancy, your organisation could offer B a sole tenancy at the Property.
• Your organisation could suggest that B seeks advice for a non molestation order (see below), or an application for an occupation order (see below).
• A court can make an order transferring the joint tenancy into B’s sole name. This can however only happen in certain circumstances. If A & B were married and were in divorce/judicial separation proceedings, your organisation could suggest to B to seek legal to apply for an order that the tenancy be assigned to B solely under the Matrimonial Causes Act 1973.
• Regardless of whether A or B were married or not, or had children, your organisation could recommend to B to seek advice to apply to the court under the Family Law Act 1996 for the transfer of the tenancy. But the decision is up to the court, and very good reasons would need to be made out for the tenancy to be transferred.

Scenario 2 – Damage to Property and Intimidation– Joint Tenancy

The house is in joint tenants in the names of A and B. A has not been physically abusive directly to B but has damaged the property and created an intimidating atmosphere for B. B could report to the police if he/she wanted to but if he/she chose not to telephone the police or the police did not take any, or sufficient action then:

• Your organisation could also invite B in to interview to see if there are any other legal remedies (such as an ASB Injunction, any third party referrals) that may assist B.
• Furthermore, if B served at NTQ to end the joint tenancy, your organisation could offer B a sole tenancy at the Property.
• Your organisation could suggest that B seeks advice for a non molestation order (see below), or an application for an occupation order (see below).
• As with Scenario 1, your organisation could suggest that B seeks legal advice to try and apply to the court under the Family Law Act 1996 for the transfer of the tenancy.

Scenario 3 – Emotional Abuse / Coercive Control– Joint Tenancy

The property is a joint tenancy in the names of E and F.  E has never been physically abusive to F and has not damaged any property. However, E had consistently been telling F that he/she is worthless, has been monitoring their phone calls and text messages and distancing them from friends and family. This has caused F to suffer from low self esteem and feel depressed.

• Your organisation could also invite F in to interview if appropriate to see if there are any other legal remedies (such as an ASB Injunction, any third party referrals) that may assist A.
• Furthermore, if F served at NTQ to end the joint tenancy, your organisation could offer F a sole tenancy at the Property.
• Your organisation could suggest that F seeks advice for a non molestation order (see below), or an application for an occupation order (see below)
• Depending on the relationship between E & F, your organisation could suggest F seeks legal advice as to their options under the Matrimonial Causes Act 1973 or the Family Law Act 1996 (as detailed in Scenario 1 above).

Scenario 4 – Coercive Control / Financial Abuse– Joint Tenancy

G and H are joint tenants. H is on benefits and when H’s money is received G insists that it is transferred directly into G’s account. When H does the shopping G gives a list to H, insists on a receipt and the exact change. H has no financial freedom or extremely limited financial freedom of their own.

• Your organisation could also invite H in to interview if appropriate to see if there are any other legal remedies (such as an ASB Injunction, any third party referrals) that may assist H.
• Furthermore, if H served at NTQ to end the joint tenancy, your organisation could offer H a sole tenancy at the Property.
• Your organisation could suggest that H seeks advice for a non molestation order (see below), or an application for an occupation order (see below).
• Depending on the relationship between G & H, your organisation could suggest H seeks legal advice as to their options under the Matrimonial Causes Act 1973 or the Family Law Act 1996 (as detailed in Scenario 1 above).

Scenario 5 – Abuse Towards Tenant  – Sole Tenancy

I is the sole tenant of the property. J has been living in the property as I’s partner or friend. J has been aggressive and threatening towards I.

• As I is the sole tenant, I can in principle, throw J out without any problem. As I and J are not married or in a civil partnership, assuming that they have no children together, I can throw J out on 24 hours notice, as they are just a licensee.
• In addition, or alternatively, your organisation could consider making an application for an Injunction under the 2014 Act to exclude J from the Property.
• In this scenario no occupation order is required and so your organisation could suggest to I that they can seek legal advice to apply for a non molestation order which could require J to remain away from the property.

Scenario 6 – Abuse Towards Resident (non tenant) by Tenant  – Sole Tenancy

A tenancy is in the sole name of  K. L has been living in the property as K’s partner.  K has been abusive to L physically, emotionally and financially. L has no financial freedom and has been isolated from friends and family. L has no where else to go.

• You could consider taking possession proceedings against K for breach of tenancy.
• Whilst K is the sole tenant, your organisation could recommend L seek legal advice to obtain an occupation order and a non-molestation order.
• You could consider offering L a starter tenancy of their own somewhere else, or advise them to seek advice or offer assistance for them to secure their own accommodation.

Scenario 7 – Issues caused by Children / visitors towards Tenant – Sole Tenancy

M is the sole tenant of the property and his child N has been living with him. N is 19 years old. N has been abusing drugs and has caused damage to the property and invited friends into the home who are often abusive to M.

• Your organisation can consider applying for an Injunction under the 2014 Act to seek an order excluding N from the property as they are not a tenant of the property;
• Your organisation could recommend M seek legal advice to apply for a non molestation order excluding N from the home, no occupation order should be needed.

FACT SHEET:

NON-MOLESTATION ORDER FAQ’S

What is a non-molestation order?

• A non-molestation order is an injunction can stop somebody from doing something which they would normally lawfully be able to do, for example: restricting communication, approaching a property or damaging joint possessions. The courts have wide discretion to think creatively where necessary to injunct somebody from doing something that they would normally be allowed to do.
• Breaching a non-molestation order is a criminal offence and the police can then take greater action.

How long do non-molestation orders last for?

• Non molestation orders last for differing periods of time but most frequently 6 or 12 months.

How do I get a non-molestation order?

• Your organisation should encourage a tenant or individual to seek legal advice to apply for a non-molestation order. The process will include an application and supporting evidence.
• At present, due to the Covid-19 pandemic, applications for a non-molestation order are sometimes being dealt with administratively without there being a need for a hearing. In other cases the Court will invite the Applicant to a hearing which is currently being done over the phone or via video such as skype.
• Any non-molestation order will have to be personally served before the Order becomes enforceable.

Is there a cost to get a non-molestation order?   

• There is no court fee for a non-molestation order.
• The fees that are likely to be incurred will be a process server fee which is usually in the region of £100 and the costs of a solicitor which can be in the region of £1,000 HOWEVER legal aid is widely available and many people do qualify for legal aid so these charges would not been payable.
• Your organisation should encourage the tenant/individual to contact a solicitor to see if they would be eligible for Legal Aid.

Does the Respondent need to know about the Application?

• In many circumstances the respondent dos not need to know about it before the order is served upon, meaning that the Applicant is granted protection from the Respondent from the time that they become aware of it. This ensures that the Respondent cannot put the Applicant off making the application or intimidate them to prevent such an application being made.
• Once served with the paperwork, the Respondent will be aware of the application.
• The Respondent will always be invited to a court hearing after being served with the court papers. This gives them the opportunity to dispute the order should they wish to do so.

What do I do if I am worried about somebody but do not think that they will contact a solicitor?

• Your organisation can talk to the individual and encourage them to seek advice to apply for a non molestation order or an application order, however the application has to be made by them – not your organisation.
• However, if your organisation has the Applicant’s permission then many solicitors will telephone the Applicant to talk to them about it taking the burden off the Applicant and making the phone call.
• The Citizens Advice Bureau have designed a scheme called FLOWS. This is a system enabling a form to be completed on the computer by the Applicant or someone assisting the Applicant which then sends the details to local Solicitors who have domestic abuse accreditations for them to contact the Applicant and make the application.   The website for this form to be completed is as follows: https://self-referral.flows.org.uk/ for self referrals and https://flows.courtnav.org.uk/register . Currently this service is for women only.

OCCUPATION ORDERS

What is an occupation order?

• Occupation Orders are Orders which prevent somebody from attending at a property that they have a right to be in. Occupation Orders can also order that the person that is prohibited from entering a home nevertheless has to pay for the rent, bills and allow the possessions remaining within the family home to be used by the now sole occupant.

What does the Court take into account when deciding whether an occupation order should be granted?

• The Court will consider 2 tests:

1. The balance of harm test which considers the harm caused by the making of an occupation order to the person that is prevented from entering the property as against the harm to the person making the application if the other person is not removed from the property.
2. The housing needs and resources of both parties, any children that would be impacted by the making of the Order, each parties financial resources, the conduct of each party and the likely affect of the order upon the health, safety and wellbeing of any party or relevant child. The courts will also consider whether there are any other orders that could be made which may benefit as a way to elevate the press and to reduce the severity of any Orders that are required.

How long does the occupation order last for?

• These orders normally last for a lesser period of time than non molestation orders as they are more onerous on the person being removed from the property. The Order is often made for a period of 6 months or for example until the divorce proceedings are finalised or until a Housing Association has changed the tenancy or the tenancy expires etc.   Extensions to occupation orders can be made in certain circumstances but it is not guaranteed.

How much does it cost to get an occupation Order?

• Similarly to a non molestation order, there is no court fee only a process server fee and legal aid is widely available.

Is breach of an occupation order a criminal offence?

• Unlike non molestation order, breach of an occupation order is not automatically a criminal offence as a power of arrest is not automatically attached. However, a power of arrest can be attached to one or more of the elements within the Order.   The Court is likely to attach a power of arrest if it appears to the court that the Respondent has been violent or threatening towards the Applicant.   If a power of arrest is not attached to the element of the Order that is breached then the Applicant can apply for a warrant of arrest through the family courts.

What do I do if I am worried about someone?

As above, your organisation can talk to the individual and encourage them to seek advice to apply for an occupation order – encourage them to seek independent legal advice where possible as these orders are a little more difficult to obtain than non molestation orders in many situations.