After Coastal – Reflections

It is probably necessary to move on after Coastal, but if you will forgive me one last pop at a reflection on it, this is it (after which I will try to put my obsession to one side).

There is a fantastic range of scholarship about the implementation of law which, at a broad level, argues that we should not necessarily expect a direct line of implementation of statute and statutory purpose for a range of reasons; and that, in fact, the statutory purpose is often subordinated to, or re-interpreted in accordance with, the bureucratic imperative of affected organisations.  Those affected organisations also have their own imperatives and local policies/practices develop in line with (eg) street-level understandings of what the law is, might be, or what is possible. [I recognise that I have done a disservice in that summary to a massive literature, which is much more nuanced and thoughtful, but do please read on]

Some of those reasons (eg inconsistency and uncertainty behind the statutory purpose) are less relevant to the Coastal debacle because Welsh policy on Renting Homes had a lengthy germination and a pretty clear general and specific purpose.  Nevertheless, there is a classic (but little known) study by the City Housing Research Group in or around the mid-1980s (curiously, the publication has no date) about the implementation of the Housing Act 1980 tenant’s charter provisions: The 1980 Tenants’ Rights IN practice: A Study of the Implementation of the 1980 Housing Act Rights by Local Authorities 1980-83 (I suspect it is impossible to get hold of this book so do please ask if you would like a copy of the summary or any chapter and I will get it for you – it pays to have been a bit of a nerd for a long time).  There had been a cross-party consensus on those provisions which gave local authority tenants statutory rights and protections for the first time, but the authors demonstrated from their survey evidence that implementation of those rights was “uneven”.  In fact, their summary of chapter 2 begins with the following:

The majority of councils have not implemented the rights effectively.  Many have not met even the minimum legal requirements.  …

One of the main explanations why so many councils have implemented the rights poorly is that they gave them relatively little priority. …

The positive approach and achievements of a small minority of councils – rural as well as urban demonstrate that the rights can be implemented well and they provide examples of good practice.

I find this interesting for all sorts of reasons.  It kind of comes to something when the interpretation of statutory requirements for the benefit of tenants is regarded as “good practice”, but, in a way, I also find it interesting that there were councils which were implementing the rights “well” (whatever that may mean; and similarly, I expect that the word “effectively” was doing some work in the first line).

It is no surprise, then, to find one of the outcomes from the Renting Homes evaluation phase 1 (the final report of which is anticipated), was stated in the summary to be:

The Phase 1 evaluation findings show generally good awareness of the Act among stakeholders and landlords/managing agents, particularly in relation to the changes around contracts, security of tenure, and fitness for human habitation and property standards. Participants highlighted the difference between awareness and understanding, however, describing how the latter had been affected by implementation delays, allegedly “late” changes to the legislation, and the Act’s complex terminology and legal ‘jargon’.

This needs quite a lot of unpicking and the Phase 2 report did not really help, finding from its work that there was “good awareness” among participants about the Act, which had developed but that “there was some feeling that although most landlords and managing agents are aware of most changes, there is still a lack of clarity around parts of the Act that can cause confusion – the use of licenses and contracts in temporary accommodation, and succession rights for example”.  It is unclear what “good awareness” might look like here beyond the superficial.  We don’t know what we don’t know.  That phrase about known knowns, known unknowns, unknown unknowns etc springs to mind.  And knowledge of law is a real problem.

My point is that we should not expect legislation to be implemented in the way intended, whether or not the intentions behind the legislation are clear.  But, in Coastal, we are not really dealing with the purposes of, and intentions behind, Renting Homes; but something rather more specific about ensuring not just that homes are of the requisite quality but also demonstrated to be so in a transparent way.  That is, as I say, rather more specific; but, being contained in a statutory instrument.  If we take the political sociology of public policy instrumentation seriously (and we should), we would recognise that, “instruments at work are not neutral devices: they produce specific effects, independently of the objective pursued (the aims ascribed to them), which structure public policy according to their own logic” (Lascoumes & Le Gales, 2004).  For a whole host of reasons, I have been thinking quite a lot about this literature recently, partly inspired by my wonderful colleagues, Dan Wincott and Caer Smyth, and partly by the Coastal litigation.

And, in this case, the public policy was structured not just by the SI but also by policy-makers and those implementing it, as well as receiving it.  It was met by housing providers which had their own imperatives and perhaps could not see the point in transparency of the reports they obtained on the electrical conditions at their properties; by tenants, who (in Coastal 2) were trusting of their housing providers to do the right thing and were simply not bothered by the absence of transparency; and by the Court which, ultimately, upheld the statutory purpose but denied restitution.

In short, my reflection of this debacle and near cataclysm for the social housing sector in Wales is that

1. we should not have anticipated a direct line from regulation to implementation;
2. there would bound to be implementation issues; and,
3. there may be other issues beyond electrical condition report.

The latter is especially possible – perhaps even probably – when the sector and sub-sectors are diffuse, and constrained in obtaining/receiving legal  and other advice.  Further, as we noted in our report on refuge provision and Renting Homes, “Provider participants found that there were differences in the legal advice they received on specific issues”.

Now, don’t get me wrong, I am not suggesting that there will be other cataclysmic challenges etc, but I think that we should anticipate and expect that things will go wrong – mostly, for the right reasons or out of ignorance or because, for example, “we have always done it this way” kind of reasons (nobody goes in to housing to do a bad job) – in individual cases and perhaps across the sector.  We need to be alive to those possibilities.  And we need a strong and active housing advice sector which can help providers and occupiers get things right and challenge policy-makers if they think the law is wrong.