Article contents
Legal Rights and Political Realities: Governmental Responses to Homelessness in Britain
Published online by Cambridge University Press: 27 December 2018
Abstract
This article presents a “contextual” study of Britain's Housing (Homeless Persons) Act 1977. The article addresses the ostensibly perplexing policy question of why Britain's homeless population has almost trebled in the 14 years since the homelessness legislation was introduced. The answer is found by subjecting the legislation to a very wide-ranging contextualization process. Rather than simply focusing on the administrative arena in which the act is implemented, the article seeks explanations for its apparent inefficacy in ideological considerations preceding its enactment, in the legislative process itself, in the (im)precise wording of the emergent statute, and in subsequent government policies in various relevant constitutional and social policy areas. The article concludes that a thorough understanding of the impact of this particular law requires it to be located in a series of interrelated contexts, a conclusion that might plausibly be extended to all studies of “law in society.”
- Type
- Articles
- Information
- Copyright
- Copyright © American Bar Foundation, 1991
References
1 See William Twining, Karl Llewellyn and the Realist Movement (London: Weidenfield & Nicholson, 1972).Google Scholar
2 347 U.S. 438. See Albert Blaustein & Clarence Ferguson, Jr., “Avoidance, Evasion and Delay,” in Theodore Becker & Malcom Feeley, eds., The Impact of Supreme Court Decisions (New York: Oxford University Press, 1973) (“Becker, Impact”). For a discussion of the case in the wider context of litigation surrounding the Fourteenth Amendment, see Howard Meyer, The Amendment that Refused to Die, esp. 220–24 (Boston: Beacon Press, 1973).Google Scholar
3 For theoretical and empirical examples see Becker, Impact Google Scholar
4 An illuminating examination of the relationship between philosophical value systems, public opinion and governmental action in respect of the redistributive implications of extensive social welfare provision is offered in Charles Lockhart, Gaining Ground chs. 1–3 (Berkeley: University of California Press, 1989). The classic radical analysis is undoubtedly Charles Reich, The Greening of America (New York: Random House, 1970).Google Scholar
5 For a contemporary analysis of federal/state relations see Gilbert Steiner, Social Insecurity: The Politics of Welfare ch. 4 (Chicago: Rand McNally, 1966) (“Steiner, Insecurity”). For a British/American comparison see Willard Richan, Social Service Politics in Britain and the United States ch. 1 (Philadelphia: Temple University Press, 1981).Google Scholar
6 Walter Williams, “The Study of Implementation: An Overview,” in Walter Williams, ed., Studying Implementation (New York: Chatham House Publishers, 1982).Google Scholar
7 A brief listing of “seminal” studies is a necessarily subjective exercise; the label might justifiably be attached to, inter alia, Kenneth Culp Davis, Discretionary Justice (Cambridge, Mass.: Ballinger, 1969) (“Davis, Justice”): Michael Lipsky, Street-Ievel Bureaucracy (New York: Russell Sage Foundation, 1980): Jerry Mashaw, Bureaucratic Justice (New Haven, Conn.: Yale University Press, 1983) (“Mashaw, Bureaucratic Justice”); Phillipe Nonet, Administrative Justice (New York: Russell Sage Foundation, 1969): Jerome Skolnick, Justice Without Trial (New York: John Wiley & Sons, 1975).Google Scholar
8 Campbell, C. M. & Wiles, Paul, “The Study of Law in Society in Britain,” Law & Soc'y Rev. 10 547 (1976).CrossRefGoogle Scholar
9 Galanter, Marc, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law & Soc'y Rev. 9 95 (1974).CrossRefGoogle Scholar
10 Martin Partington, Landlord and Tenant ch. 1 (London: Weidenfield & Nicholson, 1980); Alan Byles & Paul Morris, Unmet Need (London: Routledge & Kegan Paul, 1977); City University Housing Research Group, The 1980 Tenants' Rights in Practice (London: City University, 1987); Consumer Council, Justice Out of Reach (London: HMSO, 1970): Ross Cranston, Regulating Business (London: MacMillan, 1979); id., Consumers and the Law 81–102 (London: Weidenfield & Nicholson 1984); Kit (W. G.) Carson, The Other Price of Britain's Oil (Oxford: Martin Robertson, 1981); Richard Townsend-Smith, Sexual Discrimination in Employment (London: Sweet & Maxwell, 1989).Google Scholar
11 Respectively, Alan Bourlet, Police Intervention in Marital Violence (Milton Keynes: Open University Press, 1990): Susan Edwards, Policing Domestic Violence (London: Sage, 1989): Dee Cook, Rich Law, Poor Law (Milton Keynes: Open University Press, 1989): Keith Hawkins, Environment and Enforcement (Oxford: Clarendon Press, 1984).Google Scholar
12 Michael Adler & Anthony Bradley, eds., Justice, Discretion and Poverty (London: Professional Books, 1975): Ruth Lister, Justice for the Claimant (London: Child Poverty Action Group, 1974): Patrick McAuslan, The Ideologies of Panning Law (Oxford: Pergammon Press, 1980): Jowell, Jeffrey, “The Limits of Law in Urban Planning,” Current Legal Probs 30: 63 (1977):John Baldwin & Michael McConville, Negotiated Justice (Oxford: Martin Robertson, 1977).Google Scholar
13 One of the most recent restatements both of the reasons for using discretionary powers and of the forms such powers take in common law based legal systems is provided in Dennis Galligan, Discretionary Powers ch. 1 (Oxford: Clarendon Press, 1986).Google Scholar
14 See Gilboy, Janet, “Administrative Review in a System of Conflicting Values,” Law & Soc. Inquiry 13 515–519 (1988).CrossRefGoogle Scholar
15 See, e.g., Jones, Harry, “The Rule of Law and the Welfare State,” Colum. L. Rev. 58 141 (1958).CrossRefGoogle Scholar
16 Reich, Charles, “Midnight Welfare Searches and the Social Security Act,” Yale L. J. 72 1347 (1963); id., “The New Property,” 73 Yale L J. 733 (1964); id., “Individual Rights and Social Welfare: The Emerging Legal Issues,” 74 Yale L J. 1256 (1965).CrossRefGoogle Scholar
17 397 U.S. 254.Google Scholar
18 Cahn, Edgar & Cahn, Jean, “The War on Poverty: A Civilian Perspective,” Yale L J. 73 1317 (1964).CrossRefGoogle Scholar
19 Murray Edelman, The Symbolic Uses of Politics (Urbana, Ill.: Illini Books, 1964).Google Scholar
20 Jeffrey Jowell, “Legal Control of Administrative Discretion,” 1973 Pub. L. 178: Stan Cohen, Folk-Devils and Moral Panics (London: MacGibbon & Kee, 1972).Google Scholar
21 Cass Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Cambridge: Harvard University Press, 1990).Google Scholar
22 Reich, 72 Yale L.J. Google Scholar
23 Ian Loveland, “Administrative Law, Administrative Processes and the Housing of Homeless Persons: A View from the Sharp End,”J. Soc. Welfare L. (forthcoming 1991).CrossRefGoogle Scholar
24 For an introduction see Richard Bingham, Roy Green, & Sammis White, eds., The Homeless in Contemporary Society (Newbury Park, Cal.: Sage Publications, 1987) (“Bingham, Homeless”), and John Erickson & Charles Wilhelm, eds., Housing the Homeless (New Brunswick, N.J.: Center for Urban Policy Research, 1986) (“Erikson, Homeless”).Google Scholar
25 Loveland, Ian, “Homelessness in the USA,” Urban L. & Pol'y. 9 231 (1988).Google Scholar
26 John Coleman, “The Diary of a Homeless Man,”New York, 21 Feb. 1983, at 26; Juliet Gosling, “BABIE Look at You Now,” ROOF 3, at 8 (1990); Geoffrey Randall, A Place for the Family (London: SHAC, 1982).Google Scholar
27 U.S. Department of Housing and Urban Development, A Report to the Secretary on the Homeless and Emergency Shelters 3 (Washington, D.C.: HUD, 1984).Google Scholar
28 Mary Ellen Hombs & Mitch Snyder, Homeless in America: A Forced March to Nowhere 8–18 (Washington, D.C.: CCNV, 1986) (“Snyder, March”).Google Scholar
29 Shelter, Raise the Roof 5 (London: Shelter, 1988).Google Scholar
30 Marjorie Robertson, “Homeless Veterans: An Emerging Problem,” in Bingham, Homeless. Google Scholar
31 Nicki Pope, “Outpatients on the Scrap Heap,”Guardian, 30 Nov. 1988; Stephen Cook, “Between Haven and Hell,”Guardian, 14 March 1990; Jack O'sullivan, “Schizophrenia High in Homeless Women,”Independent, 12 July 1990.Google Scholar
32 Rob Rosenthal, “Homeless in Paradise” ch. 3 (Ph.D. thesis, University of California, Santa Barbara, 1987) (“Rosenthal, ‘Homeless’”); Geoffrey Randall, Homeless and Hungry (London: Centrepoint, 1989); Eileen McDonald, “Ghost Army of the Missing Children,”Observer, 30 Oct. 1988, at 6; Edward Pickering, “A Cry of Despair from the Streets,”Observer, 26 March 1989.Google Scholar
33 Michael Stone, “Housing and the Economic Crisis,” in Chester Hartman, ed., America's Housing Crisis (Boston: Routledge & Kegan Paul 1985) (“Hartman, Crisis”); National Consumer Council, Behind with the Mortgage (London: NCC, 1985).Google Scholar
34 Quoted in Marjorie Hope & James Young, “The Politics of Displacement: Sinking into Homelessness,”Commonweal, 15 June 1984, at 368 (“Hope, Commonweal 1984”).Google Scholar
35 See Donald Tomaskovic-Devey, “Poverty and Social Welfare in the United States,” in Donald Tomaskovic-Devey, ed., Poverty and Social Welfare in the United States (London: Westview Press, 1988).Google Scholar
36 Marjorie Hope & James Young, The Faces of the Homeless 250 (Lexington, Mass.: Lexington Books, 1986) (“Hope, Faces”).Google Scholar
37 New York: Basic Books, 1984.CrossRefGoogle Scholar
38 Mario Cuomo, “The State Role: New York's Approach to Homelessness” at 200, in Bingham, Homeless (cited in note 24) (“Cuomo, ‘The State Role’”).Google Scholar
39 Snyder, March 18–42 (cited in note 28); Hope, Faces chs. 5 & 7; Hope, Common-weal 1984; Roger Sanjek, “Federal Housing Programs and Their Impact on Homelessness,”in Erickson, Homeless (cited in note 24); H. Richard Lamb, “Deinstitutionalisation and the Homeless Mentally Ill,” in Erickson, Homeless (“Lamb, ‘Deinstitutionalisation’”).Google Scholar
40 Between 1970 and 1980 median national rents rose some 123%; the median income of private sector tenants increased by only 67%; Emily Achtenberg & Peter Marcuse, “Towards the Decommodification of Housing,”in Hartman, Crisis. Google Scholar
41 “Deinstitutionalisation” Hope, Faces ch. 6.Google Scholar
42 Kasinitz, Philip, “Gentrification and Homelessness,” Urban & Soc. Change Rev. 17 9 (1984). New York lost 30,000 SRO (60%) places between 1975 and 1981; San Francisco 5,700 (17%) between 1975 and 1979; Chicago 10,000 (45%) between 1973 and 1984; see Charles Hoch & Richard Slayton, “The New Homeless and the Skid Row SRO in the United States” (paper presented at the American Collegiate Schools of Planning Conference, Los Angeles, 7 Nov. 1987).Google Scholar
43 The public sector still accounts for some 25% of Britain's housing stock. In the United States the equivalent national figure is barely 2%; John Atlas & Peter Dreir, “Mobilise or Compromise? The Tenants' Movement and American Politics,” in Hartman, Crisis (cited in note 33).Google Scholar
44 Department of the Environment, Review of the Homelessness Legislation (London: HMSO, 1989).Google Scholar
45 Michael Spicer, MP, in an interview broadcast on BBC Radio 4′s “Today” program on 13 March 1990.Google Scholar
46 A transcript of the debate is available in N.Y. Times, 26 Sept. 1988.Google Scholar
47 For an account of the act, and of its limitations, see Illinois State Support Center, A Report on the Implementation of the McKinney act in Chicago 1987–1988 (Chicago: American Bar Association, 1989).Google Scholar
48 Kaufman, Nancy, “Homelessness: A Comprehensive Policy Approach,”Urban & Soc. Change Rev. 17 21 (1984): Cuomo, “The State Role” (cited in note 38); Hope, Faces (cited in note 36).Google Scholar
49 The following sources give some indication of current practice: F. Stevens Redburn & Terry Buss, Responding to America's Homeless ch. 7 (New York: Praeger, 1986); Snyder, March 121–27 (cited in note 28); Hope, Faces chs. 3 & 4 (cited in note 36).Google Scholar
50 Langdon, James II & Kass, Mark, “Homelessness in America: Looking for the Right to Shelter,” Colum. J.L & Soc. 19 Probs. 305, 319–23 (1985).Google Scholar
51 Phoenix and Tucson provide extreme examples of such policy and practice; see Johnathon Alter et al., “Homeless in America,”Newsweek, 2 Jan. 1984; Sexton, Patricia, “The Life of the Homeless,” Dissent. 30 79 (1983); P. Stark, “Phoenix: War on the Homeless,”Village Voice, 28 Dec. 1982. On the criminal law and homelessness in Santa Barbara and Santa Cruz, see Ian Loveland, “Local Government Responses to Homelessness: A Californian Case Study,”Local Gov't Studs. (forthcoming 1991) (“Loveland, ‘Local Government Responses’”).Google ScholarPubMed
52 Chambliss, William, “A Sociological Analysis of the Law of Vagrancy,” Soc. Probs. 12 67 (1964): Margaret Rosenheim, “Vagrancy Concepts in Welfare Law,” in Jacobus Ten Broek, ed., The Law of the Poor (Scranton, Pa.: Chandler Publishing Co., 1966). On recent use of such laws in Miami, see Jeffrey Schmalz, “Miami Police Want to Control Homeless by Arresting Them,”N.Y. Times, 3 Nov. 1988, at 1; in London see Clare Dyer, “Lawyers Attack Begging Prosecution of Homeless,”Guardian, 8 May 1989, and John Carvel, “Destitute Teenagers Face Jail Penalty,”Guardian, 3 Jan. 1990. There were some 2,000 prosecutions in London under Britain's Vagrancy Act of 1824 during 1989; “Vagrancy Law Pushes up London Homeless Arrests,”Observer, 13 May 1990.CrossRefGoogle Scholar
53 Julie Koch, “The Federal Role in Aiding the Homeless,”in Bingham, Homeless (cited in note 24).Google Scholar
54 Collin, Robert, “Homelessness: The Policy and the Law,” Urban Lawy. 16 317 (1984).Google Scholar
55 R. Rosenthal, “Homeless” at 560–61 (cited in note 32).Google Scholar
56 The classic study being Michael Harrington, The Other America (New York: Harper & Bros., 1962).Google Scholar
57 See Ron Bailey, The Squatters ch. 4 (Harmondsworth: Penguin, 1973) (“Bailey, Squatters”).Google Scholar
58 Gill Burke, Housing and Social Justice 84 (New York: Longman Inc., 1981) (“Burke, Housing”).Google Scholar
59 National Assistance Act 1948 § 21(1)(a).Google Scholar
60 Id. § 21(1)(b).Google Scholar
61 For an analysis of what Britain terms a social democratic model of government see Vic George & Paul Wilding, Ideology and Social Welfare chs. 3 & 4 (London: Routledge & Kegan Paul, 1976).Google Scholar
62 In the American context see Hope, Faces 199–208 (cited in note 36); Steiner, Insecurity ch. 1 (cited in note 5). On links between the English Poor Laws and the American welfare system see Lucy Komisar, Down and Out in the USA ch. 1 (New York: New Viewpoints, 1974). In Britain see Hill, Michael, “The Exercise of Administrative Discretion in the National Assistance Board,” Pub. Admin. 47 75 (1969); id., the Sociology of Public Administration ch. 3 (London: Weidenfield & Nicholson, 1972).CrossRefGoogle Scholar
63 D. James, “Homelessness: Can the Courts Contribute?” 1 Br. J.L. & Soc'y 195 (1974).CrossRefGoogle Scholar
64 For an account of the movement and government responses to it, see Bailey, Squatters, and Burke, Housing 83–91.Google Scholar
65 Department of Health and Social Security, Homelessness in London (London: HMSO 1971); id., Homelessness in the Counties of Gloucester, Somerset and Bristol (London: HMSO 1972); Welsh Office, Homelessness in South Wales (London: HMSO 1972).Google Scholar
66 The legal status of circulars is discussed further below; here one might note they are advisory documents only, imposing no justiciable obligation.Google Scholar
67 Andrew Gamble, Britain in Decline ch. 3 (London: Papermac, 1983).Google Scholar
68 Lorraine Thompson, An Act of Compromise ch. 1 (London: SHAC, 1989).Google Scholar
69 House of Commons Debates (hereafter HCD), 18 Feb. 1977, col. 972.Google Scholar
70 HCD, 8 July 1977 col. 1658. Robin Cook, a Labour MP opposed to the self-induced homelessness clause, observed that “we could … construct circumstances in which such fantasies could happen, [but] we had no hard evidence of a single case of self-induced homelessness”Id. col. 1638.Google Scholar
71 Id., cols. 1658–1659.Google Scholar
72 Marian Bowley, Housing and the State 1919–1945 ch. 1 (London: Garden Publishing, 1985) (“Bowley, Housing”); Peter Malpass & Alan Murie, Housing Policy and Practice ch. 2 (London: Macmillan, 1987).Google Scholar
73 Steven Merret, State Housing in Britain 279 (London: Routledge & Kegan Paul, 1979) (“Merret, Housing”).Google Scholar
74 Id. at 31–41.Google Scholar
75 For an account of the ebbs and flows of the period and a description of the various subsidy and administrative mechanisms used to regulate public sector construction, see Bowssley, Housing pt. 1.Google Scholar
76 Id. at 269–70 tables 1 & 2.Google Scholar
77 So named after the respective postwar Chancellors of the Exchequor, Hugh Gait-skell (Labour) and R. A. B. Butler (Conservative), who shared a commitment to Keynesian techniques of economic management.Google Scholar
78 David Donnison & Clare Ungerson, Housing Policy 166 table 11.3 (London: Penguin, 1982).Google Scholar
79 The seminal analysis of the “Parliamentary Sovereignty” doctrine being A. V. Dicey's Introduction to the Study of the Law of the Constitution, first published in 1885 (9th ed. London: Macmillan, 1948) (“Dicey, Introduction”). Dicey's influence on English administrative law remains immense; see Carol Harlow & Richard Rawlings, Law and Administration 11–21 (London: Weidenfield & Nicholson, 1984). But the legacy is widely regarded as unsuitable for regulating contemporary government behavior, as Dicey's critique, predating the welfare state, was informed by personal antipathy toward such collectively financed provision; see McAuslan, Patrick, “Administrative Law, Collective Consumption and Judicial Policy,”Mod. L. Rev. 46 1 (1983); Martin Loughlin, “Municipal Socialism in a Unitary State,” in Patrick McAuslan & John McEldowney, eds., Law, Legitimacy and the Constitution (London: Sweet & Maxwell, 1985) (“McAuslan, Legitimacy”). The implications of this mismatch are discussed further below.CrossRefGoogle Scholar
80 Pressure for constitutional reform has grown in recent years: see McAuslan, Legitimacy, and the All Souls-Public Law seminar, reproduced in Public Law (1985).Google Scholar
81 Britain's “modern” local government dates from 1835, when the Municipal Reform Act rationalized the previously eclectic system. Both the structure and powers of local authorities have been periodically amended since then, the latest (pre-Thatcher) major reorganization being effected by the Local Government Act 1972.Google Scholar
82 See Gerry Stoker, The Politics of Local Government 138–49 (London: MacMillan, 1988); Malcom Grant, “Central-Local Relations: the Balance of Power” (“Grant, ‘Balance’”), in Jeffrey Jowell & Dawn Oliver, eds., The Changing Constitution (Oxford: Clarendon Press, 1985).Google Scholar
83 George Jones & John Stewart, The Case for Local Government 3–10 (London: George Allen & Unwin, 1985). For a more legalistic perspective, see Martin Loughlin, Local Government in the Modem State ch. 9 (London: Sweet & Maxwell, 1986) (“Loughlin, Government”).Google Scholar
84 Recognition and development of the distinction between constitutional laws and conventions is again attributed primarily to Dicey. The former are justiciable while the latter's enforceability depends on more abstract pressures of public opinion, political feasibility, or in Dicey's own term, “constitutional morality” see Dicey, Introduction chs. 14 & 15Google Scholar
85 David Coulby, “From Educational Partnership to Central Control,” in Leslie Bash & David Coulby, eds., The Education Reform Act: Competition and Control (London: Cassell Education, 1989).Google Scholar
86 Loughlin, Government 120–21; Merret, Housing 188–89 (cited in note 73); Dennis Skinner & Julie Langdon, The Story of Clay Cross (Nottingham: Spokesman Books, 1974).Google Scholar
87 See Report of the Committee of Inquiry into Local Government Finance (the Layfield Report) table 25 and 384 & table 30 at 389 (Cmnd. 6453) (London: HMSO, 1976).Google Scholar
88 The most accessible introduction to a complex subject is Loughlin, Government ch. 2.Google Scholar
89 Grant, “Balance”.Google Scholar
90 Rod Rhodes, The National World of Local Government (London: Allen & Unwin, 1986); Michael Laffin, “Professional Communities and Policy Communities in Central-Local Relations,” in Michael Goldsmith, ed., New Research in Central-Local Relations (Aldershot: Gower, 1986).Google Scholar
91 DeFalco, Silvestri v. London Borough of Crawley, [1980] O.B. 460. See generally Robert Baldwin & John Houghton, “Circular Arguments: The Status and Legitimacy of Administrative Rules,” 1986 Pub. L 239 (1986).Google Scholar
92 Associated Provincial Picture Houses v. Wednesbury Corporation, [1947] 2 All E.R. 680 at 685.Google Scholar
93 Id.Google Scholar
94 Ian Loveland, “Policing Welfare,” 16J.L & Soc'y 187 (1989).CrossRefGoogle Scholar
95 Housing Act of 1957 §§ 111–112; and see the discussion of Shelley v. London County Council below. More generally see Merret, Housing ch. 8 (cited in note 73). Closer statutory control of local authorities' management processes was introduced by the Housing Act of 1980′s Tenant's Charter. Although the charter did not grant tenants any direct influence over rents, it did increase tenants' control over their individual properties, in terms of such matters as taking in lodgers, making improvements, and participating in the council's policymaking process. The act also placed severe restrictions on a council's capacity to evict tenants; see David Yates, “The Public Sector and the Housing Act 1980—a Tenant's Charter 1,” 1981 I Soc. Welfare L. 129; id., “The Public Sector and the Housing Act 1980—a Tenant's Charter 2,” 1981 J. Soc. Welfare L. 225. However this policy initiative was not all it might initially seem; see further below.Google Scholar
96 [1925] All E.R. 24.Google Scholar
97 For example, the Baths and Washhouses Act of 1846 and the Metropolitan Burial Act of 1852; see further the judgment of Lord Buckmaster in Roberts at 27–31.Google Scholar
98 Per Lord Atkinson, [1925] All E.R. 24 at p33. For a critical contemporary analysis of the decision see Harold Laski, “Judicial Review of Social Policy in England,” 39 Harv. L. Rev. 832 (1926). A modern critique is provided by Phil Fennell, “Roberts v. Hopwood: The Rule Against Socialism,” 13 J. Law & Soc'y 401 (1986).Google Scholar
99 The most informative account of the struggle, drawing heavily on contemporary local sources, is Nicola Branson, Poplarism 1919–1925 (London: Lawrence & Wishart, 1979). See also Brian Keith-Lucas, “Poplarism,” 1962 Pub. L. 52.Google Scholar
100 Drewry, Garvin, “Public Lawyers and Public Administrators: Prospects for an Alliance,” Pub. Admin. 64 173 (1986).CrossRefGoogle Scholar
101 John Griffith, “The Law of Property (Land),” in Morris Ginsberg, ed., Law and Opinion in England in the Twentieth Century 120 (London: Stevens & Sons, 1959).Google Scholar
102 [1949] 2 All E.R. 96.Google Scholar
103 [1955] Ch. 210.Google Scholar
104 McAuslan, 46 Mod. L. Rev. (cited in note 79).Google Scholar
105 [1948] 2 All E.R. 898.Google Scholar
106 Subsequently reenacted as § 111 of the Housing Act of 1957.Google Scholar
107 [1948] 2 All E.R. at 900.Google Scholar
108 [1975] 1 WLR 1.Google Scholar
109 The point of departure being Re HK, [1967] 2 QB 617. See Martin Loughlin, “Procedural Fairness: A Study of Crisis in Administrative Law Theory,” 28 U. Toronto LJ. 215 (1978).CrossRefGoogle Scholar
110 Which reenacted the 1977 act in unchanged form.Google Scholar
111 P. Robson & P. Watchman, “The Homeless Persons' Obstacle Race,” 1981 J. Soc. Welfare L 1.CrossRefGoogle Scholar
112 Section 59 (1). The act reiterated circular 18/74′s (para. 10) “priority groups”: “families with dependent children adult families or people living alone who either become homeless in an emergency such as fire or flooding or are vulnerable because of old age, disability, pregnancy or other special reasons.”Google Scholar
113 Section 59(1)(c).Google Scholar
114 One MP described the bill as “a dog's breakfast. … We are in danger, with the worthiest of motives, of putting absolute nonsense on the statute books.” Per George Cunningham MP, HCD, 8 July 1977, col. 1624/5.1Google Scholar
115 Section 71(1); DeFalco, Silvestri v. Crawley Borough Council, [1980] QB 460.Google Scholar
116 Para. 2.12(c).Google Scholar
117 R v. Waveney District Council, ex parte Bowers, [1983] QB 238.Google Scholar
118 Id.Google Scholar
119 Section 59(2).Google Scholar
120 HCD, 18 Feb. 1977, col. 901.Google Scholar
121 Shelter, The Grief Report 9 (London: Shelter, 1974).Google Scholar
122 The proposition that one is not homeless if one has implied occupancy rights was introduced to exclude children in the parental home from the act's benefits; HCD, 8 July 1977, col. 1678.Google Scholar
123 R v. London Borough of Ealing, ex parte Siddhu, (1982) 2 HLR 45.Google Scholar
124 Housing Act 1985 § 58. See In re Islam, [1983] 1 AC 688, discussed further below.Google Scholar
125 [1983] 1 AC 688 (Court of Appeal); (1981) 1 HLR 107 (House of Lords).Google Scholar
126 (1983) 17 HLR 82.Google Scholar
127 Andrew Arden, Homeless Persons: The Housing Act 1985, pt 3, at 114–20 (3d ed. London: Legal Action Group, 1988) (“Arden, Homeless”).Google Scholar
128 HCD, 8 July 1977, col. 1598.Google Scholar
129 “Lally v. Royal Borough of Kensington and Chelsea,” Times (London), 26 March 1980; R v. Gravesham Borough Council, ex parte Winchester, (1986) 18 HLR 207. In R v. Gillingham Borough Council, ex parte Loch (unreported), Hodgson, J., held: “it is open to an authority to reject parts of the applicant's oral testimony, if it is unsubstantiated and ‘implausible,’ without producing any evidence to rebut it; see Thornton, Rosy, “Homeless-ness Through Relationship Breakdown: The Local Authorities' Response,” J. Soc. Welfare L. 19 89 67–70 (emphasis added).Google Scholar
130 The code urges authorities to conduct their investigations promptly and sympathetically (para. 2.3). Councils have been judicially admonished for not adopting a “caring” manner; R v. West Dorset District Council ex parte Phillips, (1984) 17 HLR 336.Google Scholar
131 (1983) HLR 83.Google Scholar
132 (1981) June LAG Bull. 137.Google Scholar
133 (1986) HLR 158.Google Scholar
134 Now $ 58(2A) of the Housing Act of 1985, as introduced by the Housing and Planning Act of 1986.Google Scholar
135 Guardian 11 Jan. 1990.Google Scholar
136 See further below.Google Scholar
137 HCD, 8 July 1977, col. 1641.Google Scholar
138 HCD, 8 July 1977, col. 1670.Google Scholar
139 See Note 69 above.Google Scholar
140 Para. 2.15.Google Scholar
141 [1981] QB 801.Google Scholar
142 [1982] 1 All E.R. 726. See also Zold v. Bristol City Council, (1981) LAG Bull. Dec. 287, and Stubbs v. Slough Borough Council, (1980) LAG Bull. 16.Google Scholar
143 (1983) 8 HLR 54.Google Scholar
144 Para. 2.16 (emphasis added).Google Scholar
145 R v. North Devon District Council, ex parte Lewis, [1981] 1 WLR 328.Google Scholar
146 (1983) 9 HLR 64. See also Smith v. Bristol City Council, (1981) LAG Bull. 287; R v. London Borough of Hillingdon, ex parte Thomas, (1987) 19 HLR 196; Devenport v Sal-ford City Council, (1983) 8 HLR 54. In contrast see R v. Mole Valley District Council, ex parte Burton, Times (London), 5 April 1988.Google Scholar
147 Since the introduction of supracontractual security of tenure in 1915, the pendulum has swung toward tighter control under Labour governments and deregulation under the Conservatives. As neither increases or decreases have had retrospective impact, the private rented sector currently contains numerous types of legal relationships, each with different security implications. An illuminating introduction is Michael Partington, Landlord and Tenant (2d ed. London: Weidenfield 4k Nicholson, 1980).Google Scholar
148 Code of Guidance para. A1.Google Scholar
149 [1983] 1 AC 657.Google Scholar
150 Para. 2.16 (emphasis added).Google Scholar
151 See Michael Bryan, “Domestic Violence: A Question of Housing,” 1984 J. Soc. Welfare L. 195.CrossRefGoogle Scholar
152 [1980] 1 WLR 1205. See also Davis v. Royal Borough of Kingston-upon-Thames (1981) unreported, but noted in Arden, Homeless Persons (cited in note 127).Google Scholar
153 R v. Purbeck District Council, ex parte Cadney, (1985) 17 HLR 534; Goddard v. Torridge District Council, (1981) LAG Bull 287; R v. London Borough of Harrow, ex parte Holland, (1982) 4 HLR 108; Lambert v. London Borough of Ealing, [1981] 1 WLR 550.Google Scholar
154 Section 65(4).Google Scholar
155 HCD, 8 July 1977, cols. 1616–1617.Google Scholar
156 Lally v. Royal Borough of Kensington and Chelsea,”Times (London), 26 March 1980; DeFalco, Silvestri v. Crawley Borough Council, [1980] QB 460.Google Scholar
157 Section 65(2).Google Scholar
158 R v. Bristol City Council, ex parte Browne, [1979] 1 WLR 1437.Google Scholar
159 Section 67.Google Scholar
160 Arden, Homeless Persons 74 (cited in note 127); Association of District Councils, Homelessness: A Review of the Legislation 4 (London: ADC, 1988).Google Scholar
161 HCD, July 8 1977 column 1659.Google Scholar
162 See further below.Google Scholar
163 [1980] 3 All ER 413.Google Scholar
164 Times (London), 11 July 1980, cited in Robson & Watchman, 1981]. Soc. Welfare (cited in note 111). Mrs. Streeting was an Ethiopian married to and deserted by a British citizen. It is unclear whether the councillor's meaning in identifying “those people” indicated hostility toward blacks, foreigners in general, or people who were not long-term residents of Hillingdon.Google Scholar
165 Id.Google Scholar
166 HCD, 8 July 1977, col. 1663.Google Scholar
167 Id.Google Scholar
168 Id., col. 1668.Google Scholar
169 DOE, Responding to Homelessness: Local Authority Policy and Practice 28–29 (London: HMSO, 1988) (“DOE (1988)”); id., Homelessness in Nine Local Authorities: Case Studies of Policies and Practice 74 (London: HMSO, 1989) (“DOE (1989)”).Google Scholar
170 Sumkin, Maurice, “What Is Happening to Applications for Judicial Review,” Mod. L. Rev. 50 432.CrossRefGoogle Scholar
171 Id.Google Scholar
172 Audit Commission, Housing the Homeless: The Local Authority Role 8 (London: HMSO, 1988) (“Audit Commission, Housing”).Google Scholar
173 DOE (1988) and DOE (1989). See also Audit Commission, Housing. Google Scholar
174 Bob Widdowson, Intentional Homelessness (London: Shelter, 1981); Patrick Burkin-shaw, “Homelessness and the Law—The Effects and Response to Legislation,”5 Urban L. & Policy 255 (1982); Sue Goss, Working the Act: The Homeless Persons Act in Practice (SHAC Research Report 6; London, 1983).Google Scholar
175 Ian Loveland, “Administrative Law, Administrative Processes, and the Housing of Homeless Persons,”J. Soc. Welfare L. (1991 forthcoming).CrossRefGoogle Scholar
176 DOE (1988).Google Scholar
177 Id at fig. 5.Google Scholar
178 Id. at fig. 21.Google Scholar
179 Id. at fig. 4.Google Scholar
180 Id. at fig. 11.Google Scholar
181 Id. at fig. 9. The case in point being R v. London Borough of Eating, ex parte Siddhu, (1982) 2 HLR 45.Google Scholar
182 DOE (1988) 17–18 (cited in note 169).CrossRefGoogle Scholar
183 Id. at 11.Google Scholar
184 Id. figs. 25 & 26.Google Scholar
185 HCD, 27 July 1977, col. 881.Google Scholar
186 DOE (1988) fig. 31.Google Scholar
187 Id. at 28.Google Scholar
188 Id. at 9–10.Google Scholar
189 Christian Wolmar, “Revealed: Rising Tide of Homeless,”Observer, 6 November 1988, 8.Google Scholar
190 DOE (1989) 14–15 (cited in note 169). A “hung” council is one where no party has a majority.Google Scholar
191 Id. at 35–39. See also Rosy Thornton, “Homelessness through Relationship Breakdown: The Local Authorities' Response,” 1989, J. Social Welfare Law 67.CrossRefGoogle Scholar
192 DOE (1989) 28–30CrossRefGoogle Scholar
193 Id. at 30.Google Scholar
194 Id.Google Scholar
195 Id.Google Scholar
196 At 22 (emphasis added).Google Scholar
197 Id.Google Scholar
198 Id. at 72.Google Scholar
199 Housing Services Advisory Group, Training for Housing Work (London: HMSO, 1976).Google Scholar
200 Martin Laffin, “Professionalism in Central/Local Relations,” in George Jones, ed., New Approaches to the Study of Central/Local Government Relationships (Aldershot: Gower, 1980).Google Scholar
201 Discussed in sec. III.C above.Google Scholar
202 Audit Commission, Managing the Crisis in Council Housing 15 (London: HMSO, 1986.)Google Scholar
203 Id. at 15–17.Google Scholar
204 Pat Niner & Mary Davies, Housing Work, Housing Workers and Education and Training for the Housing Service (London: Institute of Housing, 1987) (“Niner, Housing Work”).Google Scholar
205 Inner-London boroughs were excluded from the survey because of their very low response rate.Google Scholar
206 Niner, Housing Work 64–66.Google Scholar
207 DOE (1989) 32–33 (cited in note 163).CrossRefGoogle Scholar
208 Id. at 30–32.Google Scholar
209 See Margaret Thatcher, Let Our Children Grow Tall ch.1 (London: Centre for Policy Studies, 1977).Google Scholar
210 Andrew Gamble, “Thatcherism and Conservative Politics,” in Stuart Hall & Martin Jacques, eds., The Politics of Thatcherism 110. (London: Lawrence & Wishart, 1983).Google Scholar
211 See Keith Joseph, “Conditions for Fuller Employment,” in Bow Group, eds., The Right Angle (London: Bow Group, 1978).Google Scholar
212 Ruth Lister, Justice for the Claimant 1 (London: Child Poverty Action Group, 1974); Adam Sharpies, “Costs and Benefits—The Economics of Social Security,” and Sue Ward, “Introduction,” in Sue Ward, ed., DHSS in Crisis (London: CPAG 1987) (“Ward, Crisis”).Google Scholar
213 See Peter Malpass, “Housing Policy and Young People,” in Peter Malpass, ed., The Housing Crisis (London: Croom Helm, 1986) (“Malpass, Crisis”); Stewart, Gill et al., “The Right Approach to Social Security: The Case of the Board and Lodgings Regulations,” J.L. & Soc'y. 13 371 (1986).CrossRefGoogle Scholar
214 See Loveland, Ian, “Policing Welfare,” J.L. & Soc'y 16. 187 (1989).CrossRefGoogle Scholar
215 Ian McKenna, “The Legislation of Supplementary Benefit: More Power to the Claimant?” 1983 Pub. L. 455.Google Scholar
216 Ian Loveland, “The Micro-Politics of Welfare Rights,” 1989 J. Soc. Welfare L. 23.Google Scholar
217 Judy McKnight, “Pressure Points: The Crisis in Management,” in Ward, Crisis. Google Scholar
218 Peter Malpass, “From Complacency to Crisis,” in Malpass, Crisis 12.Google Scholar
219 See F. Paish, “The Economics of Rent Restriction,” and F. Penance, “The United Kingdom: Recent British Experience—A Postscript from 1975,” both in Friedrich von Hayek, ed., Rent Control: A Popular Paradox (London: IEA, 1975).Google Scholar
220 HCD, 18 Feb. 1987, col. 976.Google Scholar
221 Burke, Housing 47–50 (cited in note 72); David Donnison et al., Housing Since the Rent Act (LSE Occasional Paper in Social Administration No. 3, 1961) (London: London School of Economics, 1961).Google Scholar
222 DOE, Housing: The Government's Proposals (Cmd. 214; London: HMSO, 1987); Francis Webb, “Guide to the Housing Act—1 and 2,” New L.J., 24 Feb. 1989, at 252 and 3 March 1989, at 288.Google Scholar
223 John Short, Housing in Britain: The Post-War Experience 117 (London: Metheun, 1982).Google Scholar
224 Margaret Thatcher, “The Ideals of an Open Society,” in Bow Group, eds., The Right Angle 6 (London: Bow Group, 1978).Google Scholar
225 An analysis of the power and subsequent case law is provided in Loughlin, Government 104–10 (cited in note 83).Google Scholar
226 Alan Murie, “A New Era for Council Housing,” in John English, ed., The Future of Council Housing (London: Croon Helm, 1982); Alan Murie, “The Nationalisation of Housing Policy,” in Martin Loughlin et al., eds., Half a Century of Municipal Decline (London: Allen & Unwin, 1985).Google Scholar
227 See note 95 above.Google Scholar
228 For a survey of “privatisations” see ROOF, March/April 1990, at 16.Google Scholar
229 Burridge, Roger & Stewart, Ann, “Housing Tales of Law and Space,” J.L. & Soc'y. 16 65 (1989).Google Scholar
230 Martin Loughlin, “Municipal Socialism in a Unitary State” in McAuslan, Legitimacy 104 (cited in note 79); Loughlin, Government 104–10 (cited in note 83).Google Scholar
231 John Gyford & Marie James, National Parties and Local Government ch. 2 (London: Allen & Unwin, 1983).Google Scholar
232 Jones, Case ch.8 (cited in note 83).Google Scholar
233 John Gyford (1985) The Politics of Local Socialism (London: George Allen & Unwin, 1985); Martin Boddy & Colin Fudge, eds., Local Socialism (London: Macmillan, 1984).Google Scholar
234 [1983] 1 AC 768.Google Scholar
235 Id. at 83. See also Ken Livingstone, If Voting Changed Anything They'd Abolish It ch. 4 (London: Pluto, 1987) (“Livingstone, Voting”).Google Scholar
236 Times (London), 7 April 1982. See also Pickwell v. Camden London Borough Council, [1983] 1 All E.R., where on facts closely resembling Roberts v. Hopwood the court refused to quash the authority's decision.Google Scholar
237 One of the most revealing insights into this episode is provided by Livingstone, Voting ch. 4.Google Scholar
238 DOE, Streamlining the Cities (Cmnd. 9063; London: HMSO, 1983).Google Scholar
239 Government ch. 9 (cited in note 83).Google Scholar
240 For example of the Thatcher governments' disregard for inconvenient judicial decisions see Patrick McAuslan & John McEldowney, “Legitimacy and the Constitution”, in McAuslan, Legitimacy 28–31 (cited in note 79).Google Scholar
241 The Local Government Act of 1972 § 142 empowers councils to issue “information” about their services and charges. The doe has maintained that much local authority publicity concerning service provision has partisan party political objectives and thus is not “information” in the statutory sense; see Chris Willmore, “Letting People Know,”Municipal Review, Aug./Sept. 1988.Google Scholar
242 See Victor Smart, “Plans for ‘Universal’ Cap on Councils,”Observer, 8 April 1990.Google Scholar
243 DOE, Draft Code of Guidance to the Housing Act of 1985 Part III at 17 (3d ed.) (London: HMSO, 1990).Google Scholar
244 HCD, 25 May 1978, cols 1900–1901, per Ernest Armstrong, M.P.Google Scholar
245 HCD, 18 Feb. 1977, col. 908.Google Scholar
246 Audit Commission, Housing 8 (cited in note 172).Google Scholar
247 HCD, 18 Feb. 1977, col. 911.Google Scholar
248 London: HMSO, 1989.Google Scholar
249 Lindsey v. Normet, 405 US (1972) 56.CrossRefGoogle Scholar
250 Rhoden, Nancy, “The Limits of Liberty: Deinstitutionalisation, Homelessness, and Libertarian Theory,” Emory L.J. 31 375 (1982).Google Scholar
251 Lamb, “Deinstitutionalisation” (cited in note 39).Google Scholar
252 Mort, Geoffrey, “Establishing a Right to Shelter for the Homeless,” Brooklyn L. Rev. 50 914 (1984).Google Scholar
253 Id. at 944–45.Google Scholar
254 On the case's background and conduct see Kim Hopper & L. Stuart Cox, “Litigation in Advocacy for the Homeless,” in Erikson, Homeless (cited in note 24).Google Scholar
255 Mort, 50 Brooklyn L. Rev. at 947.Google Scholar
256 Mario Cuomo, “The State Role” (cited in note 24).Google Scholar
257 A survey of state constitutions which arguably contain formal “rights” to shelter is provided in James Langdon & Mark Kass, “Homelessness in America: Looking for the Right to Shelter,” 19 Colum. J.L. & Soc. Probs. 305, 362–92. New Jersey's constitution is perhaps the most helpful; see Connell, John, “A Right to Emergency Shelter for the Homeless Under the New Jersey Constitution,” Rutgers L.J. 18 765 (1987). A fascinating piece of impact analysis of the provisions is provided by Michael Fabricant & Brian Epstein, “Legal and Welfare Rights Advocacy: Complementary Approaches on Behalf of the Homeless,” 1948 Urban & Soc. Change Rev. 15, describing how city officials in Elizabeth (N.J.) initially ignored their obligations, respected them during a privately funded experiment providing applicants with expert legal advocates, and ignored them again when the project ended.Google Scholar
258 Collin, Robert, “Homelessness: The Policy and the Law,” Urban Law. 16 317 (1984).Google Scholar
259 See Loveland, “Local Government Responses” (cited in note 51).Google Scholar
260 Mary Nenno, “Evolution of Local Housing Involvement,” in Mary Nenno & Paul Brophy, eds., Housing and Local Government (Washington D.C.: International City Management Association, 1982).Google Scholar
261 Ian Loveland, 9 Urban L. & Pol'y. (cited in note 25). Even British critics of the Thatcher administration's local government policy might blanch at the financial implications of California's Proposition 13; see Richard Goodenough, “Proposition 13 and Its Impact on Local Government Programmes in California,” 1982 Pol'y & Politics 439.CrossRefGoogle Scholar
262 See Loveland, “Local Government Responses.”Google Scholar
263 See Ross Cranston, Consumers and the Law 95–99 (London: Weidenfield & Nicholson, 1984).Google Scholar
264 Reich, 74 Yale L.J. 1256–57 (cited in note 16).Google Scholar
265 “Welfare Rights, Law and Discretion,” 42 Pol. Q. 113 (1971).CrossRefGoogle Scholar
266 Id. at 132.Google Scholar
267 Davis, Discretionary Justice (cited in note 7); for recent reviews of Davis's work and influence see Dennis Galligan, Discretionary Powers 167–82 (Oxford: Clarendon Press, 1986) (“Galligan, Powers”); Robert Baldwin & Keith Hawkins, “Discretionary Justice: Davis Reconsidered,” 1984 Pub. L. 570.Google Scholar
268 Mashaw, Bureaucratic justice (cited in note 7).Google Scholar
269 Id. at 11.Google Scholar
270 Id. at 4.Google Scholar
271 Id. at 214.Google Scholar
272 Id. at 11.Google Scholar
273 Galligan, Powers 188–98.Google Scholar
274 McAuslan, Patrick, “Administrative Law and Administrative Theory: The Dismal Performance of Administrative Lawyers,” Cambrian L. Rev. 9 (1978); Tony Prosser, “Towards a Critical Public Law,” 9 Brit. J.L. & Soc'y 1 (1982).Google Scholar
275 See, e.g., the reviews of Bureaucratic Justice by Deborah Maranville, 69 Minn. L. Rev. 325 (1984), and Barry Boyer, 82 Mich. L Rev. 971 (1984).CrossRefGoogle Scholar
- 6
- Cited by