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

8. Definition of Abusive Behaviour

8.1 The meaning of abusive behaviour in paragraph 15A of schedule 2 is set out at Section 2 of the 2021 Act (see Annex B).

8.2 Section 3 of the 2021 Act (see Annex C) expands on when a person’s behaviour is abusive of another person by setting out a non-exhaustive list of behaviours which are abusive.

8.3 Sections 2 and 3 of the 2021 Act should be interpreted as if references in those sections to:

(i) person A were references to the abusive tenant (referred to as “person T” in paragraph 15A); and

(ii) person B were references to the abusive tenant’s partner or ex-partner (referred to as “person P” in paragraph 15A).

Interpretation of sections 2 and 3 of the Domestic Abuse (Protection) (Scotland) Act 2021

8.4 Behaviour by a tenant is abusive of their partner or ex-partner if a reasonable person would consider the behaviour to be likely to cause the partner or ex-partner to suffer physical or psychological harm. References to psychological harm include fear, alarm or distress. It is important to note that there is no requirement for the partner or ex-partner to actually suffer physical or psychological harm.

8.5 Abusive behaviour may include behaviour of any kind including (for example):

(a) Saying or otherwise communicating something as well as doing something;

(b) Intentionally failing to say or otherwise communicate something (such as intentionally failing to pass on times and dates of appointments).

8.6 Abusive behaviour includes behaviour directed towards property and through making use of a third party, as well as behaviour in a personal or direct manner. Behaviour carried out through a third party might include getting another person to spy on the partner or ex-partner.

8.7 “Behaviour” may consist of a single incident or a course of conduct, and so in determining whether behaviour is abusive, where behaviour consists of a course of conduct, regard is to be had, not only to whether individual incidents of behaviour are likely, on their own, to cause person B to suffer physical or psychological harm, but whether the course of conduct as a whole is likely to do so.

8.8 Section 3 (see Annex C) elaborates on when behaviour can be considered to be abusive. In particular, the first example given is behaviour which is directed at the partner or ex-partner that is violent, threatening or intimidating (for instance, assault or threats). Reference to violent behaviour includes sexual violence as well as physical violence.

8.9 The second example relates to behaviour directed at the partner or ex-partner, at a child of the partner or ex-partner, or at another person by reference to the effect the behaviour is intended to have or that would be considered by a reasonable person to be likely to have, on the partner or ex-partner.

8.10 Section 3(3) provides a list of relevant effects on the partner or ex-partner:

• making the partner or ex-partner dependent on, or subordinate to, the abusive tenant. This could include, for example, preventing them from having access to money, forcing them to leave their job, taking charge of household decision-making to the exclusion of the partner or ex-partner or treating them as a domestic slave.
• isolating the partner or ex-partner from friends, relatives or other sources of support. This could include, for example, controlling their movements or access to their phone or other forms of communication, not allowing visits from or to their friends or family, or deliberately failing to pass on messages from friends or family.
• controlling, regulating or monitoring the day-to-day activities of the partner or ex-partner. This could include, for example, checking their phone, e-mail or social media use, controlling what clothes they can or cannot wear, or placing unreasonable requirements on them to, for example, prepare meals in a particular way at a particular time every day.
• depriving the partner or ex-partner of, or restricting the partner or ex-partner’s freedom of action. This addresses behaviour which robs the partner or ex-partner of their autonomy, for example, preventing them from attending work or college, preventing them from leaving the house alone, insisting on accompanying them to medical appointments, or taking decisions for them in relation to private, individual matters that a person would normally decide for themselves; or
• frightening, humiliating, degrading or punishing the partner or ex-partner. This could include, for example, abusive name-calling, threats of self-harm, manipulating them into doubting their sanity, controlling their access to the toilet or forcing them to eat food off the floor.

8.11 This approach is intended to capture behaviour within a relationship which is abusive because it is coercive or controlling or otherwise amounts to psychological or emotional abuse of the partner or ex-partner. The description of abusive behaviour in section 3 is non-exhaustive and therefore it remains possible in any individual case that the tenant’s behaviour was abusive in some other way.

8.12 A criminal conviction for abusive behaviour is not required before social landlords can use the new abusive behaviour ground, however this could provide evidence for the court that abuse has taken place. Where a relevant criminal conviction does exist, social landlords will wish to consider whether the streamlined process for recovery of possession or termination of a tenant’s interest in a tenancy at section 19 of this guidance is appropriate.