Domestic Abuse – Social Housing Tenancy Provisions: Statutory Guidance for Social Landlords

12. Other Factors to Consider When Deciding Whether to Use the Abusive Behaviour Ground

12.1 There are key things social landlords should consider when dealing with and supporting victim/survivors of domestic abuse:

• safety: the safety of the victim/survivor and any children should be paramount and they should be signposted to agencies that can assist in providing them with advice and a place of safety where necessary;
• confidentiality: this is crucial to their safety and includes any system generated risks to the victim/survivor: for example, the potential for internal systems/processes such as housing management system “flags” or access to casework files that inadvertently bring about risk to the victim/survivor and their household.

Person-centred approach

12.2 It is extremely important from the outset to take a person-centred approach to determine the housing outcome the victim/survivor would like to achieve. This will include the options of remaining/ returning to the family home or securing a new tenancy elsewhere and will include an assessment of safety issues, with the safety of the victim/survivor and any children the primary consideration.

12.3 In some circumstances it may be appropriate for the social landlord to provide the victim/survivor with emergency accommodation whilst long term housing options are being considered.

Victim/survivor’s wishes

12.4 If the victim/survivor does not wish to continue living in their current house for safety, or any other reason, or to return to live there as the tenant, the new ground for ending a tenant’s interest in a house cannot be used. Social landlords should instead consider the best alternative immediate and long term housing options for the victim/survivor in close partnership with other agencies. Further information on housing options is set out in Section 16 of this guidance.

Any ongoing family or matrimonial proceedings or other protective proceedings between parties

12.5 Social landlords will wish to consider any other on-going court proceedings that they may be made aware of by the victim/survivor and whether the outcome of these may help with achieving the desired housing outcome for the victim.

Custody arrangements for children

12.6 The social landlord must ensure that agreement has been reached on the custody arrangements for any children before deciding to use the new ground 15A in schedule 2 of the 2001 Act.

Social landlord’s actions on ground 15A - the tenancy

Sole tenants

12.7 If the social landlord wishes to transfer the tenancy to the victim/survivor, and the abusive tenant is the sole tenant, the social landlord must then seek to recover possession of the house for that purpose.

12.8 If the court grants an order for recovery of possession of the sole tenant’s tenancy on the new abusive behaviour ground, the social landlord will then be required to offer a new tenancy of the house to the victim/survivor (beginning as soon as reasonably practicable) within 28 days, unless it is impossible or inappropriate to do so (see section 18.9 of this guidance and sections 16(7) and (8) of the 2001 Act).^[13]

Joint tenants

12.9 If the social landlord wishes to bring a joint tenant’s interest in a tenancy to an end on domestic abuse grounds, the social landlord must then seek to terminate the joint tenant’s interest in the tenancy for that purpose. This will enable the victim/survivor to remain or return to the tenancy as the tenant.

12.10 If the abusive tenant and the victim/survivor are joint tenants with others, the social landlord will also want to consider the victim/survivor’s relationship with the other joint tenant(s) and the effect an application for a court order to end the abuser’s interest in the tenancy will have on them.

12.11 A court order on the new abusive behaviour ground will have the effect of only bringing the abusive tenant’s interest in the tenancy to an end on the date set out in the order from the court. This will allow the victim/survivor to remain in or return to the tenancy as a tenant.

Streamlined process for recovery of possession or termination of a joint tenant’s interest in a tenancy

12.12 Where the abusive tenant has been convicted of an offence relating to the abusive behaviour, punishable by imprisonment within the previous 12 months, social landlords will wish to consider whether to use the streamlined process for recovery of possession or termination of a tenant’s interest in a tenancy (see section 19 of this guidance).

Abusive behaviour ground not satisfied

12.13 Where all of the conditions of paragraph 15A of schedule 2 of the 2001 Act are not met, the abusive behaviour ground cannot be used to recover possession of a sole tenancy or end a joint tenant’s interest in a tenancy. Social landlords should therefore consider other options to support the victim/survivor and any children in line with their Domestic Abuse Policy.

12.14 This may include providing the victim/survivor with support to find legal advice/solicitors who are experts in domestic abuse and family law such as the Scottish Women’s Rights Centre who can offer free and confidential legal advice and advocacy support to women affected by violence and abuse in Scotland.

12.15 Scotland's Domestic Abuse and Forced Marriage Helpline can also provide advice, support and information on other sources of help to anyone experiencing domestic abuse 24 hours a day.

12.16 Advice and support for men experiencing or recovering from domestic abuse can be obtained from the Abused Men in Scotland Helpline: Our Helpline | AMIS.