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TITLE PAGE the Implementation of Rights in Housing Law by Stewart TITLE PAGE The Implementationof Rights in Housing Law By Stewart Montgomery PhD ThesisPresented to the University of Glasgow December2001 ACKNOWLEDGEMENTS I would like to thank the following people who provided much help and support throughoutthe courseof my thesisstudies. Many thanks to my supervisor, Mr Tom Mullen, for providing a constant source of advice and encouragement, helping me to explore new avenues and assisting in the clarification and direction of my thoughts. To all my colleagues in the housing field, particularly those staff who participated in the fieldwork whose namesI cannot mention to preserve confidentiality. The University library staff have been extremely helpful and a specialnote of thanks to Heather Worlledge Andrew and her colleagueson Floor- 7. But my gratitude also to the many other library staff including Glasgow Council Central Library Information Service for responding timeously to many researchqueries. Particular thanks aredue to stadat the CharteredInstitute of Housing,the PlanningExchange and Pat Tracey of the Scottish Executive for supplying a great deal of useful researchdata. Personal thanks are due to the following people. To Alice Ann Jackson for trawling through the manuscript and offering useful insights. To Gavin Montgomery, my nephew and erstwhile Glasgow University student, for assistingin my computer studies. To Willie Black and Scott Meikle for many fruitful ideas. To Gavin Corbett at Shelter. And to Edith McDonald I owe thanks for having typed the many drafts as well as the final thesis. Finally, my deepestthanks to my wife Jacquelinefor her continuous support. And last I dedicatethis volume to my deceasedparents, Helen and John Montgomeryfor their love through the years. And a final acknowledgementwith deepestaffection to my best fhend MalcolmAbernethy who regrettablypassed away during the courseof my studies. 2 ABSTRACT This thesis examinesa range of issuesconcerning legal rights implementation in the field of Scottish housing law. This examination comprises three principal themes: firstly, an evaluation of the broad range of factors that can affect the implementation of legal rights. These factors are gleaned from an extensiveliterature review. Secondly, a critical analysis of key factors that affect the implementationof rights in respect of two Scottish councils, including assessmentof the implementation of a select cluster of legal rights. Thirdly, drawing conclusionsthat identify the key factors pertinent to rights implementation. Legal developmentsin the field of housing have been diverse. But there has been little systematicstudy in the housingfield of thosefactors that affectthe implementationof legal rights. The thesisconsiders these factors in detailand reveals a complicatednexus of inter- relating elementsthat either contribute to or inhibit effective rights implementation. Political and ideological influencesare shown to be significant, as is the influence of the legal process itself But paramount in explaining rights implementationis the complex relationship that existsbetween council landlordsand their tenants. Tenants,as key playersin decidingto exercise their rights, often fail to do so; while landlords, charged by Central Government with the administrativetask of implementinglegal provisions, can be remiss in accomplishing their legal dutiesas a resultof variousorganisational deficiencies. Organisationalsystems theory is applied to identify key organisationalelements that are critical to ensureeffective rights implementation.These elements are analysedin detail in the fieldwork that evaluatesthe organisationalpractices of two Scottish councils; this fieldwork incorporatesanalysis of implementationof four specific legal housing rights. Findingssuggest that rights implementationis often ineffective,this failing attributableto a number of specific organisationaldeficiencies that include dearth of strategic planning, 3 inadequacyof policy and procedural documentation,inappropriate work practices including lack of relevant performance indicators, ineffective communication systemsand, crucially, under-developedtraining programmesfor housing staff. In conclusion, the thesis highlights that effective implementation of rights requires strategic organisational direction based on a systemic approach to implementation, a perspectivethat synthesisesthe various elementspertinent to rights implementation. 4 CONTENTSPAGE PageNumbers Acknowledgements 2 Abstract 3-4 ContentsPage 5-7 Chronological List of Statutes 8-9 Chronological List of Statutory Instruments 10 Chronological List of Circulars 11 Table of Cases 12-13 List of Figures 14 List of Tables 15 Chapter 1: Aims and Methodolo 16-24 Chapter 2: Factors Affectiniz Implementation of Le2al RiOts 25 Implementation of Rights: An Introduction 26-28 Literature Review: Sources 28-29 Political and Ideological Factors 30 a) Political and Ideological Factors and the Developmentof Rights 30-36 b) Political Supportfor the Implementation qfRights 36-41 C) Politica[Supportfor the implementationoffthts. ý YheRole of Yhe Councillors 41-43 d) Ideolqy: 7he New Public Management 43-50 Summary 50-51 Factors Relating to the Legal Process 51 a) Determinacy 51-54 h) TheRole of the Judiciary 54-66 c) Remedies 66-83 Summary 83-84 5 Individuals' Capacity to Enforce their Rights 84 a) The Effects of Poverty 85-89 b) Publicity of Rights 89-92 c) Tenant Training 92-94 d) Accessto Advice and Information 94-99 e) Tenant Willingness 99-102 Summary 102-103 Avoidance 103-109 Summary 110 Organisations 110-114 a) External Constraints 114-122 b) Organisational Culture and Structure 122-126 c) Work Methods and Practices 126 i) Policies andDocumentation 127-128 ii) Communications 128-131 iii) Workload andMethods of Work 131-135 iv) PerformanceManagement 135-138 V) PersonnelMatters 138-150 Summary 150-154 Selection of Fieldwork Issues: Rationale 154-160 Chapter 3: Lezal Rhihts Implementation in Council A 161 Introduction 162 Legal Rights Provisions 162-174 Council A: A Profile 174-175 Organisational Culture 175-178 Policies and Documentation 178-189 Implementation of Rights 189-221 Other Factors in Rights Implementation 221 a) WorkloadandMethods of Work 222-226 b) PerformanceManagement 226-228 c) Communications 228-233 d) PersonnelMatters 233-252 6 Summary 252-253 Chapter 4: Legal RiAts Implementation in Council B 254 Introduction 255 Council B: A Profile 255-256 Organisational Culture 256-259 Policies And Documentation 259-269 Implementation of Rights 269-294 Other Factors in Rights Implementation 294 a) Workload andMethods of Work 294-297 b) PerformanceManagement 298-299 c) Communications 299-304 d) PersonnelMatters 304-320 Summary 320-321 Tenants' Capacity to Enforce their Rights 321-326 Chapter 5: Conclusions 327-339 ReferenceList 340-341 Bibliography 342-359 Appendices Appendix 1: Interviewees 360-362 Appendix 2: Topic Guides 363-390 Appendix 3: CaseStudies 391-399 7 CHRONOLOGICAL LIST OF STATUTES Municipal Corporations Act 1835 Metropolis ManagementAct 1885 Housing (FinancialProvisions) Act 1924 Housing (Scotland) Act 1935 Legal Aid and Advice Act 1949 Post Office Act 1953 Housing FinancialProvisions (Scotland) Act 1972 Local Government(Scotland) Act 1973 Rent Act 1974 Local Goverment (Scotland) Act 1975 Sex Discrinýnation Act 1975 Race Relations Act 1976 Housing HomelessPersons Act 1977 Housing Act 1980 Tenants' Rights Etc (Scotland) Act 1980 Civic Government(Scotland) Act 1982 Control of Pollution Act 1984 Mental Health (Scotland) Act 1984 TelecommunicationsAct 1984 Sex Discrimination Act 1986 Housing and Planning Act 1986 Legal Aid (Scotland) Act 1986 Housing (Scotland) Act 1987 Accessto Personalfiles Act 1987 Debtors (Scotland) Act 1987 Court of SessionAct 1988 Housing (Scotland) Act 1988 Local GovernmentAct 1988 Civil Evidence (Scotland) Act 1988 Local Governmentand Housing Act 1989 Local GovernmentAct 1992 LeaseholdReform, Housing and Urban DevelopmentAct 1993 Criminal Justice and Public Order Act 1994 Local Government(Scotland) Act 1994 Children (Scotland) Act 1995 Criminal Law (Consolidation) (Scotland) Act 1995 Disability Discrimination Act 1995 Housing Act 1996 Noise Act 1996 Scottish Legal ServicesOmbudsman and Commissionerfor Local Administration ScotlandAct 1997 Protection from HarassmentAct 1997 Crime and Disorder Act 1998 Data Protection Act 1998 Human Rights Act 1998 Scotland Act 1998 Local GovernmentAct 1999 8 Race Relations (Amendment)Act 2000 Housing (Scotland) Act 2001 CHRONOLOGICAL LIST OF STATUTORY INSTRUMENTS Assured Tenancies(Notices to Quit PrescribedInfonnation) (Scotland) Regulations 1988, SI 1988/2067 The Landlord's Repairing Obligations (Specified Rent) (Scotland) (No 2) Order 1988, SI 1988/2155 Accessto PersonalFiles (Housing) (Scotland) Regulations 1992, SI 1992/1852 Local Government (Competition) (Defined Activities) (Housing Management) Order 1994, SI 1994/1671 SecureTenants (Right to Repair) (Scotland) Regulations 1994, SI 1994/1046 HomelessPersons (Priority Need) (Scotland) Order 1997, SI 1997/3049 Housing (Right To Buy) (Cost Floor) (Scotland) Order 1999, SI 1999/611 10 CHRONOLOGICAL LIST OF CIRCULARS 23/1980 Tenants' Rights Etc (Scotland) Act 1980. Amendedby SDD/84/17 and SDD/86/34 32/1988 Housing (Scotland) Act 1987 (Right-To-Buy) (Cost Floor) Deternýnation 1988 33/1992 Accessto PersonalFiles (Housing) (Scotland) Regulations 1992 12/1994 Right to Repair 16/1998 Housing and Neighbour Problems:Dealing with Nuisanceand Anti-Social Behaviour 27/1998 Crime and Disorder Act 1998: Anti-Social Behaviour as a Ground for
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