Solicitor, Law Trainer
Copyright © 1996 Matthew Waddington.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
This comment looks at some sections of the Housing Act 1996 which give increasing legal powers for local authorities to make value-judgements about people, and considers what this means for use of public law by those people. The piece examines 'introductory' tenancies (Chapter I of Part V), allocations (Part VI), 'special control provisions' on houses in multiple occupation (Part II), and the effects on advice (s 179) and procedure (including the final Woolf Report on Access to Justice). It offers an analysis of the common background to these changes in the influences of 'back to basics' on one side and communitarianism on the other. It then goes on to identify three continuing strands from the Victorian origins of these debates. These are considered from the point of view of Law Centre housing lawyers attempting in a rights culture to use public law to win more than bricks and mortar for excluded communities.
This comment looks at those sections of the Housing Act 1996 (all references are to this Act unless otherwise stated) which introduce new elements of public law discretion for councils to make value judgements about tenants and housing applicants. These are found in the provisions on 'anti-social behaviour', allocations, Houses in Multiple Occupation, and advice. They are planned to come into force in January 1997, except those on Houses in Multiple Occupation which are expected later in 1997 after consultation. The Housing Act 1996 is a vast collection of changes, in which the nearest thing to a common factor is privatisation. This note does not attempt to deal with the Act as a whole. In particular it ignores Parts I (social renting), III (landlord and tenant), and IV (Housing Benefit). The homelessness changes (Part VII) are not covered as they are not sufficiently relevant to this theme, and have also been very extensively covered elsewhere as the main focus of the public debate. Instead particular provisions of the Act are isolated which exemplify a current trend in housing law.
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Part V of the Act brings in extensive changes to eviction grounds and injunctions as well as new introductory tenancies. These are heralded as protecting tenants from nuisance. However, the common element is that not a single extra right is given to victims of nuisance. They will still therefore only have public law, extensively developed over the years in racial harassment, to challenge lack of action from councils. New powers, rather than duties, are given to landlords and councils, making action by them easier. The question then is whether the courts will be readier to interfere with a decision not to act as being "so unreasonable that no reasonable authority could ever come to it". This was how the 'unreasonableness' test was formulated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223, or reworked as the 'irrationality test' in Council of Civil Service Unions v Minister for the Civil Service  AC 374.
Chapter I of Part V creates insecure 'introductory tenancies', which councils can give to new tenants. They become secure after the first year, but in the meantime they are terminable for any reason. The council must serve notice, containing the reason for the eviction. There is no limit in the statute on how trivial a reason can be given. The council must apply to court, but only needs to prove a reason was given, not that the reason is a good one. Under s 129 the tenant can only argue the merits of the reason in an internal review by the council. The only court challenge would therefore have to be by Judicial Review.
Chapter II of Part V improves the grounds for eviction of secure and assured tenants for nuisance. It also creates a new ground of eviction for domestic violence, as well as shortening the notice given before eviction proceedings. Chapter III of Part V creates, in s 152, a new ground for injunctions against anti-social behaviour, with powers of arrest imported from the law on domestic violence. In s 153 it makes available a power of arrest for injunctions founded on breach of tenancy agreement clauses prohibiting nuisance. These are relatively uncontroversial and will improve the effectiveness of injunctions.
The fundamental problem on nuisance is how to avoid intimidation of witnesses without making eviction arbitrary. This is uncontroversially dealt with for secure tenants in s 144 (and for assured tenants in s 148) which allows for eviction for behaviour 'likely to' cause a nuisance. This will mean evidence will still be required, but it could be from video or a housing officer, rather than from a tenant.
However, if a council nevertheless opts for introductory tenancies, the problem will be whether only simple 'reasons' have to be given, or whether in the review the introductory tenant should be given the evidence and any witnesses' identities. The government's consultation on how to implement Part V avoids this issue completely (DoE 1996a). The relevant principles of 'natural justice' were developed in Ridge v Baldwin  AC 40 and McInnes v Onslow Fane  1 WLR 1520. It will be fiercely argued whether the removal of a person's right to their home is significant enough to justify a high degree of disclosure of the case against them.
Judicial Review has moved on since it was last a significant tool for defending public sector evictions before the Housing Act 1980 introduced security for council tenants. Introductory tenants challenging the merits (rather than the procedure) of an eviction, could now attempt to invoke the principle of 'proportionality' from the CCSU case referred to above. This would involve arguing that the court should interfere where the loss of the person's home is not proportional to the public interest to be served in the eviction. The principle was severely limited by the decision in R v Secretary of State for the Home Department ex parte Brind  1 AC 696, which emphasised that it should only have a role as an aspect of irrationality. However, it is submitted that in these eviction cases its use would be more modest than in Brind or in R v Ministry of Defence ex parte Smith and Others  1 All ER 257, where the courts showed traditional reluctance to interfere in national security.
Lobby groups warned that Judicial Review defences could make evictions of introductory tenants more cumbersome than the conventional County Court procedure against secure tenants for nuisance under Ground 1 or 2 of Schedule 2 Housing Act 1985. Remarkably it appears that the Local Authority Associations' response has been to call openly for their decisions in these cases not to be subject to Judicial Review (Inside Housing 1996). Even if this is wishful thinking, it demonstrates councils' growing confidence that they should be allowed to exercise unfettered discretion over aspects of people's lives as crucial as eviction from their homes. Councils have similarly been arguing on the question of repairs, in the discussions on the Woolf Report, that they have an identity of interest' with their tenants and are responsible and so should not be subject to any other control.
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Under the Housing Act 1985 s 22 homeless people must be given a reasonable preference on the waiting list for council housing. Part VI of the Housing Act 1996 is mainly aimed to stop this with a more detailed framework for allocations of council tenancies. The key provision is s 167(8) which makes the waiting list the only way to be allocated a secure tenancy (subject to limited exceptions). Further, s 167(2) leaves homelessness out of the factors to be considered for priority on the waiting list (and s 193 puts new limits on the duration of the homelessness duties). The Act is very sparse on detail, so the Government's Guidance will be crucial. This is likely to be based on the consultation papers referred to below. The government's main problem is that it also wants to give councils more discretion over how they operate their lists (DoE 1996b, para 4).
The law on allocations will therefore become more contentious than previously. It has received academic attention from a housing perspective in Cole and Furbey (Cole and Furbey 1994, pp 140-144) and a legal perspective in Stewart (Stewart 1996, pp 177-183). Practitioners have used public law principles over the last few years to try to extend the allocation rights of people in housing need. Their progress and set-backs have been chronicled in Legal Action journal.
The Act for the first time introduces national bans on certain groups of people from rehousing through the waiting list. The first group is certain categories of immigrants, under s 161(2). However, the government retains power to add other unrelated groups under s 161(3). Councils also have freedom to ban other groups themselves under s 161(4).
The government claims the new allocations system will cure a failure of the old system to give enough weight to long term housing need (DoE 1996b, para 1 and 21). But it wants flexibility to take into account two other factors not related to applicants' needs. These are
"the underlying values of society" (DoE 1995a, p 36)
"need to make the best use of available stock (including stock that is hard to let) or to ensure a mix of different household types (for instance a variety of generations) on local estates." (DoE 1996b, para 23).
The first factor includes the idea of priority for married couples who hold off having children until they have adequate housing (DoE 1996b, para 29). This would have bizarre implications in practice. Presumably if no baby is born within a year or so of allocation the tenants should explain themselves or face accusations that they lied to obtain the tenancy. They would then risk eviction (under s 146) and prosecution (under s 171).
The second factor reflects a growing anti-market enthusiasm for social engineering. It assumes that a 'mix' is a good thing and leads to stability. Until recently the government mostly talked in terms of diversity of tenure, presumably believing that people buying their houses on an estate 'raises the tone'. The new idea appears more sinister and involves councils not having to allocate to the person at the top of the waiting list. It means that a person in greater housing need than anyone else on the list might still be denied an offer of a tenancy on the estate of their choice. It implies that this would be based on an inevitably subjective judgement by the council that there were already too many people there of the same age (or class, or sexual orientation, or political views?).
Many in the field feel they can readily and usefully divide tenants into 'decent' and 'bad'. They are attracted by discretion which they feel means not having to allocate to 'bad' tenants. The problem inherent in accepting this approach is that you cannot make 'good' tenants move on to 'bad' estates and problems come from putting 'bad' tenants on 'good' estates. The hidden agenda behind mixing seems to be first that the 'bad' tenants are sifted out. Research by the Joseph Rowntree Foundation (1996) confirms the view of the DoE (1996b, para 11) that some councils are using such schemes to stop allocation to nuisance tenants. In R v Newham LBC ex p Miah (1996) 28 HLR 279, at 288, Carnwath J said of the existing Housing Act 1985 s 22
"It is not unreasonable to prefer good tenants to bad tenants".
The growth in powers to make such subjective judgements will raise public law problems. One would be whether the courts would recognise such a decision as Wednesbury unreasonable. It remains to be seen whether there is a degree of social snobbery or homophobia in a refusal of allocation which would be so extreme that the courts would interfere.
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Part II of the Act alters Part XI of the Housing Act 1985, on Houses in Multiple Occupation, much of which dates back little changed to Victorian times. The key disagreement over this Part is on the government's choice to continue to leave it up to local authorities whether to adopt 'registration schemes' (s 65-70). Under these the local authority gains additional powers, increased by the Act, to keep track of and enforce standards in local Houses in Multiple Occupation. The Opposition argued for a national mandatory licensing scheme instead. This resembles the Victorian debate except the roles are reversed as it was then central government which wanted to centralise power over public health (Fraser 1984, ch 3 and Ormandy and Burridge 1988, p xxxviii).
'Special control' provisions are introduced by s 67. They enable a council to use its registration scheme "for preventing houses in multiple occupation, by reason of their existence or the behaviour of their residents, from adversely affecting the amenity or character of the area in which they are situated". The council can close down properties or prevent them opening. The provisions were promoted as being to stop damage to tourist resorts by 'seaside scroungers' living in hotels converted to hostels. This envisages councils taking on the role of stopping poor neighbours from moving in and 'lowering the tone'.
However, the section is broadly enough drafted to be used by councils anywhere to combat ordinary neighbour nuisance. One problem is that a council might close down a House in Multiple Occupation on the grounds of the behaviour of only some of the tenants. Any innocent tenants might have suffered the nuisance from the other tenants. But they might then find themselves evicted as part of closing the House in Multiple Occupation. They would not necessarily qualify for rehousing as homeless either, for example if they were fit and single and so not in 'priority need'.
In this the Act reverts to the Victorian origins of the law on Houses in Multiple Occupation in protecting neighbourhoods against tenants, rather than tenants against dangerous properties. In housing and health based accounts (Burnett 1986, Fraser 1984, and Ormandy and Burridge 1988), the legislation developed as a public law issue out of Victorian encroachments on the private law of property. These arose out of public health concerns about squalid conditions spilling out as disease epidemics. But there was always also a parallel concern about policing anti-social behaviour and immorality (prostitution, sexual overcrowding etc). These were seen as breeding in and spreading from slums just like disease. Clearance was a preferred solution, without security for the tenants, and with only respectable tenants being rehoused. Tenants still cannot safely enforce standards because they are usually assured shorthold tenants who can therefore be evicted for doing so.
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The effects of new powers for councils will depend partly on tenants' access to advice. There is a new, very general, duty in s 179 on local authorities to fund homelessness advice. Widdowson (1996) heralds it as a new opportunity for housing advice. But it will only be positive as long as the value of independent advice is recognised. Some councils are already insisting on no action being taken against them, and Westminster City Council have apparently gone a step further in setting a script for agencies' initial advice on housing problems (Legal Action 1996).
The effect will also depend on how this relates to developments in Legal Aid (see Goriely 1994) and the Woolf recommendations (Woolf 1996) on access to civil justice. The Legal Aid changes are supposed to see a shift in funding to social welfare areas of law like housing, but will involve capping of spending.
The effects of the forerunner of the Woolf recommendations on homelessness have been discussed by Partington (1994). The government has announced its intention to implement most of the recommendations by October 1998 (LCD 1996). It does not mention those specifically about housing, which emphasised the need to keep disrepair cases out of the courts wherever possible. These cases are the main source of routine Legally Aided work for private practice housing solicitors. The government claims in the strategy to have thought through the inter-action of Woolf and the Legal Aid changes. They do not seem to consider the interaction with s 179.
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The motivation behind these changes is more complex and those behind the privatisation and homelessness changes in the rest of the Act. This analysis considers which housing policy factors, with Victorian parallels, are involved.
Two quotations serve to illustrate two sides of a coin on this:-
Smailes (1994) using as her title a quotation from Egerton (1990)
"The struggle has never been simply about bricks and mortar"
DoE (1995b, para 3.1)
"A secure tenancy is a valuable asset, providing a home for life. In the Government's view this has to be earned"
Law Centre housing lawyers try to work in the struggle referred to in the first quotation above. They claim credit for opening up use of public law in housing. In housing, social exclusion is recognised as an issue (see eg Cowan 1995, Palmer 1995, Pascall 1996 and Morley 1996), even if only because ghettos produce management problems. Others look not at the struggle but at the role of social housing beyond providing bricks and mortar. For instance Spicker, talks of the welfare state as the additional factor in social housing compared to private housing (Spicker 1989). From another angle, Stewart reviews the way government sees itself as buying more than bricks and mortar from the social rented sector in return for public funds (Stewart 1996, p 253).
The government's answer is to offer services from social landlords based on subjective judgements about tenants in allocations, nuisance evictions and closure of houses in multiple occupation. The government statement quoted above epitomises the conflict in the government's view of tenants. On one side they are seen as consumers acquiring assets in a market-place which needs further privatisation. On the other they are seen as needing to be graded by authority, by processes alien to the market, into the deserving and the undeserving. This reflects the notorious role of 'back to basics' in the attacks on single mother queue-jumpers which led to the homelessness and allocations changes.
The privatisation and homelessness changes may be reversed after an election. However, Ireland identifies a conservatism in the approaches of all three main parties to the question of community, with a waning of the ultra-liberal New Right (Ireland 1995). He illustrates this with a discussion of sexuality. In this the liberal origins of a private and public split affect views on morality, with parallels to the public-private law split. Therefore, the changes covered here fit more with New Labour's apparent conversion to communitarianism. Crawford, discussing the communitarian ideas of Etzioni, points to the clear link with Jack Straw's approach to neighbour nuisance (Crawford 1996). The traditional left too was always uncomfortable with the liberal agenda inherent in talk of rights (see Loveland 1992 on 'rights' to council housing). Post-modern critics have since fuelled the unease. This has become entangled in debate on the future of the welfare state, for example in Tweedy and Hunt (1994) on Habermas and social rights, and on social exclusion as in Meyers (1993).
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Three factors can be identified which have been blamed in different combinations, since the Victorian era, for bad housing conditions. These are firstly the physical state of the property or its sanitation (the bricks and mortar), secondly the poverty or social exclusion of the occupants, and thirdly the moral fecklessness or criminality of the occupants.
The natural approach of Victorian liberals and conservatives was to see both bad housing conditions and poverty as the result of the fecklessness of the undeserving poor. On this view nothing need be done, and charity would be positively harmful. The Sanitary movement, the early Marxists, and the approach of Octavia Hill, an early property manager, offered three different reasons for doing something.
It took the Sanitary movement to persuade Victorian opinion that it was physical inadequacy of the property which caused the other two factors. Edwin Chadwick pointed out the need for action in that the consequent spread of disease also increased spending under the Poor Laws. The solution was therefore the subsequent bricks and mortar approach. This meant public law on housing standards developed without private law rights for tenants. This still echoes in the current position on houses in multiple occupation.
By contrast, Spicker (1992) credits Charles Booth's social survey of Victorian London with blaming poverty, in the manner of the modern traditional left. Engels, at the Victorian origins of the traditional left, blamed poverty but still saw it as creating immorality not just bad housing (Engels 1845, p 102).
"What physical and moral atmosphere reigns in these holes I need not state. Each of these houses is a focus of crime, the scene of deeds against which human nature revolts, which would perhaps never have been perpetrated but for this forced centralisation of vice."
Octavia Hill (for a critical review, see Spicker 1992) epitomised another strand in Victorian housing, which has survived to advocate providing more than bricks and mortar. She believed the moral condition of the tenants was the key factor. But she believed tenants could be improved. So for her the essence of housing management lay in a system of visitors intervening in tenants' lives to reform them. These were to be women visitors since women as natural managers of the home were the best managers of housing. Questions of gender, race and class are raised by the moral judgements made by her women visitors, who are commonly caricatured as middle-class ladies in big hats doing missionary work among the poor while their menfolk did similar work in the Empire.
Clapham et al (1990, p 207) suggest Hill's successes may have been more the result of weeding out tenants rather than improving them. This resonates with current accusations that introductory tenancies are a smoke- screen for under-resourcing of management. Her modern supporters, such as Power (1987), often promote intensive management but with less paternalism and more tenant involvement. Critics, such as Spicker (1985), attack her approach as fundamentally tied to authoritarian moralism in opposition to welfare rights.
Brion (1994) and Cole and Furbey (1994, pp 133-136) trace her influence on the developments of the women's (interventionist generic management) and men's (technicians working only on the bricks and mortar) branches of the housing profession. Clapham et al (1990, p 210) link variations in the influence of her style of approach to socio-economic factors, particularly whether public housing is catering for general or special needs. They see this leading to more influence now for her approach. Calls for powers for more intensive management are behind the changes in the parts of the Housing Act 1996 considered here.
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The unifying force in the changes covered in this piece is the discretion over dividing tenants into the decent and the anti-social. Stewart (1996, p 302) tries to understand what is happening in terms of legal relationships. She suggests the move is from property to contract. But she puzzles over why public non-contractual services such as protection from nuisance neighbours are being promoted in an increasingly contractualised and privatised public sector (Stewart 1996, p 185).
The changes may instead indicate developments along the lines of the model in Ireland (1995). In this a new conservatism, in both Government and Opposition, is taking over from a liberal privatising contract-based approach. Under this conservatism the liberal divide between private and public (in morality and law) becomes less important.
Stewart discusses the development of council housing law to the mid-1970s. She points to growing resistance to an increasingly antagonistic role of councils (Stewart 1996, p 135).
"Tenants at this time renewed their attempts to use the courts to regulate a number of management issues. Undoubtedly, this recourse to the law was related to the development of Law Centres and the growing expertise of housing lawyers who were discovering public law and widening their horizons to challenge public as well as private landlords."
These factors may revive as councils make explicit value-judgements on people while Law Centres and other advice agencies receive more attention and work with tenants to try to exploit openings in public law.
However, an increasingly conservative or communitarian culture is affecting councils, tenants, government and courts. They are gaining confidence in criticising those seen to take more than their fair share by insisting on their legal rights (eg The Lawyer 1996). This may force the advice agencies to rethink their use of rights talk.
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Brion, M (1994) Women in the housing service (London: Routledge).
Burnett, J (1986) A Social History of Housing, 1815-198' (2nd ed) (London: Routledge).
Clapham, D, Kemp, P and Smith, S (1990) Housing and Social Policy (London: Macmillan).
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Crawford, A (1996) 'Review article on Etzioni The spirit of community: rights, responsibilities, and the communitarian agenda' Journal of Law and Society 247.
Department of Environment (1995a) Our Future Homes: Opportunity, Choice, Responsibility: the Government's Housing Policies for England and Wales (London: HMSO).
Department of Environment (1995b) Anti-Social Behaviour on Council Estates: A Consultation Paper on Probationary Tenancies (London: DoE).
Department of the Environment (1996a) Part V of the Housing Act 1996: Conduct of Tenants: Consultation on the Draft Circular on Introductory Tenancies and Repossession for Secure and Assured Tenancies and the Introductory Tenants (Review) Regulations 1996 (London: DoE).
Department of the Environment (1996b) Allocation of Housing Accommodation by Local Authorities: Consultation Paper Linked to the Housing Bill (London: DoE).
Egerton, J (1990) 'Out but not down: Lesbians' experience of housing' Feminist Review 36, Autumn.
Engels, F (1845) The condition of the working class in England [Rev ed 1987] (Harmondsworth: Penguin).
Fraser, D (1984) The Evolution of the British Welfare State (2nd ed) (London: Macmillan).
Goriely, T (1994) 'Rushcliffe fifty years on: the changing role of civil legal aid within the welfare state' Journal of Law and Society 545.
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Ireland, P (1995) 'Reflections on a rampage through the barriers of shame: law, community and the new conservatism' Journal of Law and Society 189
Joseph Rowntree Foundation (1996) 'Community Lettings in Practice' Housing Research Findings No. 171, March 1996
The Lawyer (1996) 'Lawyers for council tenants labelled "morally deplorable" ' 5th November 1996.
Legal Action (1996) 'Reviewing local advice provision' November 1996, p 6.
Lord Chancellor's Department (1996) The Way Forward: The Lord Chancellor's strategy for implementing Lord Woolf's review of the procedures of the civil courts (London: LCD).
Loveland, I (1992) 'Square pegs, round holes: the "right" to council housing in the post-war era' Journal of Law and Society 339.
Meyers, D (1993) 'Social exclusion, moral reflection and rights' Law and Philosophy 217.
Morley, R and Pascall, G (1996) 'Women and homelessness: proposals from the Department of the Environment: II. Domestic violence' Journal of Social Welfare and Family Law 327.
Ormandy, D and Burridge, R (1988) Environmental Health Standards in Housing (London: Sweet and Maxwell).
Palmer, J (1995) 'Housing and social exclusion' 6 Housing Review 124.
Partington, M (1994) 'Reforming Judicial Review: the Impact on Homeless Persons Cases' Journal of Social Welfare and Family Law 47.
Pascall, G and Morley, R (1996) 'Women and homelessness: proposals from the Department of the Environment: I. Lone mothers' Journal of Social Welfare and Family Law 189.
Power, A (1987) Property before people (London: Allen and Unwin).
Smailes, J (1994) ' "The struggle has never been simply about bricks and mortar": Lesbians' experience of housing' in Gilroy, R and Woods, R (eds) Housing Women (London: Routledge).
Spicker, P (1985) 'The Legacy of Octavia Hill' Housing magazine June 1985.
Spicker, P (1989) Social housing and the social services (Harlow: Longman and Institute of Housing).
Spicker, P (1992) 'Victorian Values' in Grant, C (ed) Built to Last? Reflections on British Housing Policy (London: Roof Magazine).
Stewart, A (1996) Rethinking Housing Law (London: Sweet and Maxwell).
Tweedy, J and Hunt, A (1994) 'The future of the welfare state and social rights: reflections on Habermas' Journal of Law and Society 288.
Widdowson, B (1996) 'Housing aid - where to now?' 4 Housing Review 68
Woolf, Lord (1996) Access to Justice: Final report to the Lord Chancellor on the civil justice system in England and Wales (London: HMSO).