The government is currently consulting on a proposal to end housing benefit entitlement to women living in short-term supported housing, including those who live in refuges. Instead, local authorities will be responsible for funding refuges. The proposal does not clearly guarantee that current levels of funding will be maintained.

The proposed scheme has rightly caused huge concern. Women’s Aid carried out a survey with refuge providers, which indicated that over a third of refuges would close completely, and a further 13% would reduce spaces available, leading to about 4,000 more women and children being turned away from refuges. This would leave a large number of highly vulnerable people at significant risk of harm and death. Domestic violence levels in England and Wales are very high. Two women are killed each week by a current or former partner, and an estimated 1.2 million women have suffered domestic violence in the last year, according to the most recent figures from the Office for National Statistics.

The current proposals are not entirely clear. But there are a number of reasons why, if they are put into effect in a way which does not guarantee the current level of provision, they are likely to be unlawful. Three potential arguments as to why are as follows.

The first argument is that the proposal is indirect discrimination, and unlawful under s.19 and 29 of the Equality Act 2010. It would be a provision, criterion or practice. The evidence produced by Women’s Aid, the ONS, and others shows that it would put women at a particular disadvantage: R (HA) v. Ealing London Borough Council [2016] PTSR 16; and see Essop v. Home Office [2017] 1 WLR 1343. It would then be for the government to put forward a sufficient justification for the proposal. If the government fails to properly comply with the Equality Duty within s.149 EA 2010, it will not be in a position to prove the discrimination is justified: R (Coll) v. Secretary of State for Justice [2017] 1 WLR 2093, §42. 

Secondly, the proposal is incompatible with article 14 read with article 8 ECHR. Being a victim of domestic violence is ‘other status’ within article 14, and a significant reduction in available places in women’s refuges would have a discriminatory effect which the government would be required to justify with cogent evidence: HA (above), and Talpis v Italy (App. No. 41237/14) 2 June 2017.

Thirdly, it may be argued that the proposal violates articles 2 and 3 ECHR.  Those articles contain positive duties to protect those whose lives or physical safety may be at risk, and special diligence is required in respect of victims of domestic violence: Talpis. A failure to ensure a vulnerable person is looked after may breach those articles: see, for example, Ioan Pop v. Romania (52924/09) 6 March 2017.

Women’s Aid has produced a template response to the consultation, which ends on 23 January 2018. Anyone interested is strongly encouraged to respond.

Adam Straw