Housing Justice in a Time of Austerity?

In this more reflective blog, I want to pick up on something I wrote a while ago about decision-making and the lack of challenge.  The title to this blog picks up on the title of my colleague, Dan Newman’s fab co-authored book Justice in a Time of Austerity (Bristol Uni Press, 2021), which offers a rich reading of legal advice and legal aid provision across different sectors.  That book begins with a rent possession day in a County Court in London’s East End (and with the recently, sadly deceased, Simon “Spike” Mullings, working the duty scheme that day).

My reflection, then, goes something like this.  It’s about the difference between England and Wales.

In England, there are various leading texts on possession proceedings, quiet enjoyment, homelessness, social housing allocations.  Each of these texts begins with indexes of decided cases.  The homelessness and allocations texts have about 50 pages.  These are much litigated areas in England.  Partly, that is because of the social housing settlement in England, the paucity of stock, and the inability to find accommodation in some areas, leading to really tough cases.  One may have to explain, for example, to  obviously vulnerable single people why the law might not regard them as “vulnerable” (counter-intuitively); or why, despite the fact that they are living in accommodation which may be overcrowded or a health and safety hazard, they might not be “homeless”.  Procedurally, there are so many Court of Appeal decisions on one sub-regulation, which is still being litigated in the County Courts.  There are some legal advice deserts, to be sure (ie areas where there is limited or no specialist legal aid housing advice), but there is also quite a bit of litigation (don’t get Nearly Legal or housing association CEs started on ambulance chasers).  Not all of that litigation is in concentrated urban areas like London or Birmingham or Bristol.  I don’t want to give the impression of a booming trade because, frankly, legal aid is a mess and firms are exiting from/not bidding for housing contracts as they can’t make the finances work.  But, where they can, there is litigation which properly challenges decision making.

In Wales, on the other hand, we have new legislation which, whether you like it or not, requires some further exposition affecting all renters and applicants for homelessness assistance.  As we have explored in previous posts, there are real issues about the insufficiency of housing provision.  On another project on which I am working, I have been told repeatedly that people are approaching with more complex needs (not just housing).  Speakeasy recently sent me a Cardiff allocation policy change for homelessness clients powerpoint (happy to forward on to anyone, if you would like to see it).  This tells us that all standard temporary accommodation units are full; they have 58 families in hotels; and 9k on the housing waiting list.  Symbolically, their cabinet has declared a “housing emergency” (whatever you call it doesn’t really matter to me – there is a supply deficit of low cost housing which appears to be growing, not just in Cardiff).  Their response is that they are going to be offering private rented sector properties out of area, where appropriate; and not allowing homeless households to restrict their housing choices to any area in Cardiff (ie unless at risk, households will be offered a property wherever suitable housing becomes available in the city).

So, the conditions are there for growth in legal challenges.  New, untested legislation; supply-side deficit; austerity; high levels of complex housing need.  Here is my research question (as we academics like to put it): given those conditions, and the example of England, why is there limited legal challenge in courts of record and on County Court appeals?

I do want to be clear by the way that what follows is definitely not a call for more law; precisely the reverse.  Although it may seem strange given my professional interest, I don’t believe that more law makes for better administration.  There is quite interesting work on the impact (and lack thereof) of judicial review and court challenges, for example.  There is also some brilliant work on administrative fairness coming out of the lab at York.  Mine is a reflection only on why there appears (at least superficially) to be the case that there is so little housing law in courts of record in Wales when there is so much jurisprudence in England.

There are three potential hypotheses (which are not mutually exclusive):

(a) Decisions made are generally legally correct.  I think that this is unlikely.  In homelessness law, there is a wide margin of appreciation, ie the burden is on the applicant to prove their case, and nitpicking isn’t allowed and reviewing officers are not writing housing law examination scripts.  Nevertheless, there is sometimes scope for procedural challenge, Equality Act considerations, and questions of interpretation (especially of the 2014 Act and where it differs from English law).  And I say this in the nicest possible way but not all homelessness review decisions are equally “good”.  Outside homelessness, as we saw in the Coastal case, social housing providers can get pretty plainly written law wrong (at least so far – I gather an appeal to the Court of Appeal has been filed), and not all of Renting Homes is easy.  There are issues in the supported housing sector, potentially.  So, I think that this hypothesis is not necessarily plausible.

(b) Decisions are changed when challenged.  This is a more plausible hypothesis and, anecdotally, seems to happen quite a bit.  The positive spin is that this is a specifically Welsh phenomenon – adversarialism isn’t the dominant force; rather, there is a collaborative approach in which decision-makers work with clients and their advisors to come to the right decision.  I certainly recognise that ethic from my various engagements in the housing sector in Wales, and which is different from the adversarialism in England.  But … I really worry about this.  What we know is that people affected by decisions (whatever type) don’t always seek reviews or make challenges, even to really egregious decisions.  Many (to use the academic term) “lump” their grievances, and it may be that is more likely in Wales than England (that’s a genuine research question: are people in Wales more likely to respect a decision than people in England?  Again, I think that is unlikely, but it is possible, I suppose).  So, this type of approach privileges those who are able to be proactive, and who are able to seek legal advice.  We know, I think, that generally people don’t seek legal advice – in my own research (in England) with homeless people, whether or not they sought legal advice was described as “luck” based on the fact (eg) that they were passing a solicitors’ office and thought they would go in.  Administrative justice scholars suggest that the whole purpose is to get decisions right the first time, and not on review etc.

(c) There are serious legal aid deserts in Wales, such that there is significant unmet legal needs.  I fear that this is particularly true.  Dan got me the stats on housing legal aid provision in Wales.  It makes for pretty grim reading.  Six firms have housing contracts.  Shelter Cymru, which do fantastic work, cover many areas and have a housing loss prevention advice service.  There is the relatively new North Wales law centre.  And other stalwarts, like Duncan Lewis (in Swansea), Gomer Williams (in Llanelli and Swansea), Vale Solicitors (Barry and Llanwith Major – their website doesn’t advertise legal aid housing, so I wonder about that), and Riverside Advice (Cardiff).  As Dan put it (in an email), “… most of the country outside Cardiff/Vale and Swansea/Llanelli, the two largest urban conurbations, is awful (and even [they] don’t have enough). North and West Wales especially badly served – though you will see our new legal aid contract for North Wales Community Law in there – until we got this in the last year, it was even bleaker”.  (There appear to be two barristers chambers in Cardiff with social housing interests (Civitas and 9 Park Place), and other individuals with significant housing law interests, but they can only act on instructions.)

Thinking about it, there may be two further options.  First, there is the role of alternative dispute resolution.  For example, there is the Ombudsman service, which can take up complaints that are not satisfied through internal complaints processes.  But, I wonder whether (i) the Ombud is known other than in certain circles,  (ii) whether it would be used or even the first port of call after a complaint, and (iii) there is likely to be complaint exhaustion before one can even approach the Ombud.

The other possibility is that there is more going on than I know about.  That is possible given that so much housing law goes on in County Courts which is unreported.  I simply don’t have the data on that.  If that is the case, please send me details of your cases.

Do get in touch if you have other hypotheses/comments.  I’d be really interested to hear other views.