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Durham E-Theses Durham E-Theses Crime control through housing management Cobb, Neil Anthony How to cite: Cobb, Neil Anthony (2005) Crime control through housing management, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/3004/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk CRIME CONTROL THROUGH HOUSING MANAGEMENT NEIL ANTHONY COBB DEPARTMENT OF LAW THESIS SUBMITTED FOR THE DEGREE OF MASTER OF JURISPRUDENCE UNIVERSITY OF DURHAM 2005 A copyright of this thesis rests with the au,thor. No qlllotation from it should lbe published without his prior written consent and information derived from it should be acknowledged. ABSTRACT Crime control through housing management Neil Anthony Cobb M.Jur Thesis 2005 Over the last decade the management of social housing in England and Wales has extended to the formal control of bad behaviour. This thesis charts the political development of this increasingly important function and the legal infrastructure within which it operates. Part one explores the development of the crime control function of social landlords over the last decade within its political, social and economic context. Part two then provides a critique of the resultant emphasis upon public protection within housing policy by identifying the conflicts and tensions this has created with the competing discourses of legal due process and welfarism. CONTENTS PART I AN OUTLINE OF THE DEVELOPING CRIME CONTROL FUNCTION OF SOCIAL LANDLORDS 1 Chapter 1: A brief legal and political history 2 Chapter 2: The legal tools 14 Chapter 3: The section 218A duty 31 PART II PUBLIC PROTECTION AND HOUSING MANAGEMENT: SOME CONFLICTS AND TENSIONS 59 Chapter 4: Dispensing with due process: problematizing court procedures 61 Chapter 5: Considering the welfare of the perpetrator (1): social policy 97 Chapter 6: Considering the welfare of the perpetrator (2): the legal tools 112 Chapter 7: Considering the welfare of the perpetrator (3): the interface with "welfarist" legal instruments 138 SOME FINAL CONCLUSIONS 162 BIBLIOGRAPHY 164 Ill Declaration No part of this thesis has previously been submitted for the award of a degree in the University of Durham or any other university. This thesis is based solely upon the author's research. Copyright The copyright of this thesis rests with the author. No quotation from it should be published in any format without the author's prior written consent. All information derived from this thesis must be acknowledged. IV Part I AN OUTLINE OF THE DEVELOPING CRIME CONTROL FUNCTION OF SOCIAL LANDLORDS This first part explores the development of the crime control function of social landlords over the last decade within its political, social and economic context. It sets out a brief history of council housing in England and Wales and the recent rise of the registered social landlord as an equal, if not superior, partner in social housing provision. It explains too the process by which social housing has become residualized, marginalised and consequently stigmatised as 'inherently criminogenic' within political discourses, making it a focus for government intervention. It then outlines the controversial legal sanctions now available to social landlords to manage crime and disorder around their housing stock and assesses the discourse of public protection used to justify them. Finally, it notes tl1e recent creation of the section 218A duty on social landlords to prepare and publish policies and procedures on anti-social behaviour, drawing out the implications of this particular development for the contemporary role of housing management in policing bad behaviour. Chapter 1 A BRXJEJF JLJEGAL AND POLITICAL HISTORY 1. Social housing provision in England and Wales From the end of the First World War and Lloyd George's promise of 'Homes Fit for Heroes' the state, through local government, has to a greater or lesser extent taken a hand in the provision of rented residential housing.l However, in the immediate period following the Second World War the council sector bore little resemblance to its counterpart today. Although still the predominant element of the social rented sector, it has decreased greatly in size. Whilst it provided 30 per cent of all housing in the United Kingdom at its peak in 1971, it consists of just 14 per cent today.2 As explored later in this thesis, the demographic of council residents has also altered considerably; from affluent working-class householders to a sector accommodating concentrations of the poor and socially excluded. The security of tenure of local authority tenants is governed by statute. Prior to 1980, council tenants, unlike their counterparts in the private rented sector, enjoyed almost no statutory protections vis-a-vis their landlord. 3 Local housing authorities, as public authorities, were deemed responsible landlords and therefore appropriately regulated by political rather than legal mechanisms.4 However, this has now changed. Under the Housing Act 1985 council tenants are predominantly "secure" tenants.s A secure tenancy provides strong security of tenure, enabling landlords to regain possession of the property in only limited circumstances. It also allows tenants to exit the sector by purchasing their property under the 'right to buy' scheme. Furthermore, the allocation of council housing is also now regulated by statute. Councils must give reasonable preference to certain categories of 1 D Hughes and S Lowe, Public Sector Housing Law (London: LexisNexis, 2000), Ch I. 2 Office of National Statistics, Living in Britain: the 2002 General Household Survey (London: HMSO, 2004). 3 Aside from the notice requirements imposed by the Protection from Eviction Act 1977. 4 A Stewart, Rethinking Housing Law (London: Sweet & Maxwell, 1996), Ch 4. 5 Although the introductory and demoted tenancies, introduced specifically to tackle crime and disorder, are of increasing importance. 2 vulnerable household, and must also provide short-term accommodation to the homeless.6 Whilst the council housing sector continues to contract, the growth of housing associations; private, often charitable, not-for-profit organizations providing homes for low-income households in general or more specifically particular vulnerable groups such as the mentally-ill or homeless, has increased exponentially in recent years. Registered social landlords (RSLs) are those housing associations registered with the Housing Corporation, a non-departmental public body that provides investment but also regulates the organizations they fund. RSLs have become increasingly institutionalized. Lately perceived by government as an answer to social housing provision beyond the state, they have taken control of large quantities of council stock through Large-scale Voluntary Transfers (LSVTs), often set up by councils themselves for this purpose.? There has been a concentration too of public funding for new housing in the RSL sector. Housing associations and RSLs now make up a total of six per cent of all housing in the United Kingdom.s Though often functioning in a manner indistinguishable from local housing authorities, housing associations work within a substantially different legal framework. Their tenants are subject to an alternative statutory regime to those within the council sector. The Housing Act 1988 provides them with the same protections afforded to private rented sector tenants; either relatively high security under the assured tenancy or extremely low security under the assured shorthold tenancy. Only guidance and regulation by the Housing Corporation ensures that RSLs at least predominantly provide fully assured tenancies to their tenants. Unlike local housing authorities, housing associations are under no direct obligation to house vulnerable households. However, registered social landlords 6 See Chapters VI and VII of the Housing Act 1996. 7 Transfers are directed particularly towards the government's "decent homes" standard, under which all social housing should be of a reasonable standard of repair by 20 I 0, as registered social landlords, outside public sector controls, are able to raise private finance. 194 LSVTs by local authorities have now been approved, involving nearly 850,000 dwellings in England. 8 Office of National Statistics, above n 2. 3 are under a statutory duty to provide reasonable assistance to councils to enable them to fulfil their welfare role.9 There remains considerable confusion as to whether housing associations constitute public bodies with respect to their amenability to judicial review and the provisions of the Human Rights Act 1998.10 It appears from case law that associations are not subject to judicial review when exercising "their normal and essential functions as landlords", even when they receive public funds.11 However, it is arguable that this conclusion, established over 25 years ago, reflects an outdated source-based approach to the supervisory jurisdiction of the High Court. The more recent function-based analysis looks not to the origin of a body's power - in this case that the landlord-tenant relationship derives from private law - but to whether that power is exercised in support of a public function,l2 The status of housing associations for the purposes of the Human Rights Act 1998 is also uncertain. Whilst RSLs are not "core" public authorities for the purpose of section 6 of the 1998 Act, they may still be subject to the legislation in particular situations if found to have engaged in "functions of a public nature" in accordance with section 6(3)(b).
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