Homelessness and Social Housing Allocation Bill: Deep Dive 1

[Apologies for the unavoidable delay with this post – long train ride yesterday without mobile signal #grrr]

This is the first of probably a few deep dives into the Homelessness and Social Housing Allocation Bill’s clauses, and it is at the behest of somebody who asked me about certain provisions – more specifically, the range of powers retained by the Welsh Government.  Now, I can fully appreciate that powers to issue guidance, make directions, and lay statutory instruments are not the most sexy parts of a Bill – the highlights of which were provided a couple of weeks ago (here).

In a way, that’s the point.  They are not sexy, but they will be absolutely critical to the way in which the Bill is implemented.  Although it may pain the Office of Legislative Counsel (OLC), not many people are going to wade through the thickets of an Act.  They will rely on Guidance as an authoritative (or quasi-authoritative, as only judicial interpretation can be so and may trump Guidance) interpretation of the Act which will indeed guide their practice.  As English courts regularly remind us, housing officers are not lawyers and they do not write housing law assessments (unfortunately, one might say) and so, naturally, Guidance will be their first port of call.  On the other hand, fewer still will consider secondary legislation (until it affects them or their case) and procedures for approval are often less rigorous than they are for primary statutes.  That is why we should start our analysis with these powers.

These provisions divide in to three types: secondary legislation to edit categories; powers to issue Guidance; and a power to issue a Direction.  In her great book, Quasi-Legislation, my former tutor and academic-I-most-admired, Professor Ganz drew attention to the variety of secondary and tertiary legislation, most of which exists without a statutory basis.  And, more recently, legislation has become shell-like creating the means for Secretaries of State to make quasi-legislation.  The constitutional battle over these kinds of points was lost in the 1920s after The New Despotism. So, we might say that this Bill, at least, is up front in the powers that it is giving to the WG.

The first thing to say is that the powers to make regulations by Statutory Instrument seem (to me) to be generally unexceptional and unexceptionable.  Since the outset of homelessness law, these powers have existed, and it makes sense to retain these kinds of powers to meet various political moments or exigencies.  For example, in relation to local connection, it makes sense to empower the Minister to amend the list of people to whom it does not apply, or to provide further detail about the existing categories.  These kinds of powers enable the smooth running of the law (or implementation pathway).  It also makes sense to be able to add to, or remove from, the list of public bodies subject to the co-operation duty – there are two notable absences from the published list, for example: primary care services; schools.  One can imagine that a different government (or the same government) after the election might consider adding them.

As regards the powers to issue Guidance, going over it this morning with interested parties, I found it interesting how these powers are framed.  More specifically – and this is really important given the significance of Guidance – the Bill employs what, at first sight, are different mandatory words regarding how that Guidance is to be used.  Social landlords must have regard to the guidance given on their duty to co-operate as must others under the “ask and act” duty; whereas, local authorities shall have regard to the Guidance that is issued.  Is it too nerdy to draw attention to that difference?  My experience of OLC is that they use their words carefully, but what is the difference between “must” and “shall”.  The second point on Guidance is that there must be a concern that there is not going to be one central Guidance document but a range of Guidance documents – I would suggest that, if the latter is planned, that would not be helpful.  Experience suggests that requiring housing officers and others to work across multiple Guidance documents might not be optimal.  Third, and finally, I want to draw attention to this amendment which exemplifies why I love the Welsh style of government of housing/homelessness:

Before giving, revising or withdrawing guidance under this section, the Welsh Ministers must consult such public or local authorities, voluntary organisations, persons who are, or who have been homeless or threatened with homelessness in Wales or other persons as they consider appropriate.

This is brilliant – innovative; thoughtful; but probably quite difficult to implement, so ambitious.

Then, there is a fascinating (and important) power to issue a Direction against an RSL which does not comply with the duty to co-operate or does not have a good reason for so doing.  This provision in the English and (until now) Welsh law has been toothless: see, for example, s. 213(1), Housing Act 1996 and R v Northavon DC ex p Smith [1994] 2 AC 402.  This is important because RSLs have a stock of housing which can be used to provide temporary and more permanent accommodation for homeless people.  They generally have nomination agreements with local authorities which govern the use of the stock subject to them.  For years, the concern has been that RSLs may have “cherry picked” (to use the unfortunate expression which was current) certain households for nominations over others (generally, the more risky households).  Without wishing to blow my own trumpet again, but the work that we did in the 2000s suggested that these relationships between local authorities and RSLs were fraught with trust issues and the word “betrayal” was used.  This power, then, enables the Minister to have regulatory oversight of these relationships.

There is a final point here.  I am sure that the WG have considered this, but the increasing control being taken over RSLs as described above might (and this is very tentative) make others think that they are public bodies for accounting purposes – see the debacle from 2015.  I’m sure that thought has been given to that, but it would be worth making sure that we are on the right side of that line, rather than saddling us with more public sector debt.