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 systems and, 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) WorkMethods 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 Eviction

3/1999 The Crime and Disorder Act: Guidanceon Anti-Social Behaviour Orders

11 TABLE OF CASES

AG Securitiesv Vaughan [1990] 1 AC 417

Aldrington Garagesv Fielder (1979) 37P& CR 461

Antoniadesv Villiers [ 198 8] 3 WLR 1205

Brador Properties Ltd v British TelecommunicationsPLC, 1992 SLT 490

Brooker Settled EstatesLtd v Ayers (1987) 19 IHLR 246, (1987) 54 P& CR; (1987), IEGLR 50, CA

ClackmannanDistrict Council v Morgan, Unreported 22/10/91, Alloa Sh Ct

De Falco v Crawly Borough Council [1980] QB 460

Gavin v Lindsay (1987) SLT (Sh Ct) 12

Glasgow District Council v Brown 1988 SCLR 433

Glasgow District Council v Lindsay, Unreported 24/6/96, Glasgow Sh Ct

Glasgow District Council v Erhaiganoma,1993 SCLR 592

Haniff v Robinson [ 1993]I ALL ER 185

Holiday Flat Co v Kuczera, 1978 SLT (Sh Ct) 47

Norwich CCv Secretaryof State for the Enviromnent [1982] ALL ER 737

O'Rourke v CamdenLBC [1997] 3 ALL ER 23

Otter v Norman [ 1988] 2 ALL ER 897

Pepper v Hart [ 1992] 3 WLR 1032

Puhlhoferv HillingdonLondon Borough Council [1986] AC 484

Roberts v Hopwood [1925] AC 578

Rv Brent London Borough Council, ex p Awua (1994) 26 IHLR 539, CA

Rv Hammersmithand Fulham LBC ex p Lusi (1991) 23 IHLR, 460

Rv Islington Borough Council, ex p Hinds (1994) 27 IHLR 65

Rv Lambeth London Borough, ex p Bodunrin (1992) 23 IHLR 647

12 Rv London Borough of Lambeth, exp Vagliviello (1990) 22 BLR392, CA

Rv Northampton Borough Council, ex p Carpenter(1992) 25 HLR 349

Rv Port Talbot Borough Council, ex p McCarthy (1991) 23 IHLR 207

Rv Royal Borough of Kensington and Chelsea,ex p Bayani (1990) 22 IHLR 406, CA

Rv Rugby Borough Couticil, ex p'Hunt (1992) 26 IHLRI, QBD

Rv Tower Hamlets, ex p Rouf (1991) 23 HLR, 460

Rv Wandsworth Borough Council, ex p Oteng (1994) 26 IHLR 413, CA

Rv WaveneyDistrict Council, ex p Bowers [1983] QB 238 at 244, CA

Rv Westminster City Council, ex p Augustin (1993) 25 IHLR 28 1, CA

Rv Wyre Borough Council, ex p Parr (1982) 2 BLR 71

Scottish ResidentialEstates Development Co Ltd v Henderson 1991 SLT 490

Sonimav Hazelhurst [ 1978] 1 WLR 1014

Street v Mountford (1985) 274 EG-821, BL

Thornton v Yjrklees Metropolitan Borough Council [1979] QB626, CA

Westminster City Council v Great Portland EstatesPLC [1985] AC 661, CA I Wilson v Nithsdale District Council 1992 SLT 1131 I Woodspring District Council v Taylor (1984) 4 HLR 95

13 LIST OF FIGURES

Figure 1: Housing Support Grant to Scottish Councils

Figure 2: Housing Support Grant to Councils A and B

14 LIST OF TABLES

Tables 1-4: Council A

Table 1: Household Profiles of AcceptedHomelessness Applicants

Table 2: Household Profiles of RefusedHomelessness Applicants

Table 3: Area Office Intentionality Refusals

Table 4: Managing Rent Arrears (April 1998-March 1999)

Tables 5-11: Council B

Table 5: Household Profiles of RefusedHomelessness Applicants

Table 6: Area Office Intentionality Refusals

Table 7: Household Profiles of Intentionality Refusals

Table 8: Court Action Outcomes(April 1999-July 1999)

Table9: CouncilStaff with HousingQualifications

Table 10: Area Office Staffwith HousingQualifications

Table 11: HomelessnessTraining Needs Assessment: 1997/98

15 Chapter 1: Aims and Methodolo

16 Aims and MethodoIogy

This section outlines a) the aims of the thesis and b) the researchmethodology used.

Aims of Thesis

The principal aim of this researchwas to carry out a socio-legal study into factors that

affect the implementationof legal housing rights within the public housing sector. The focal

point of this study was to identify key factors that determine the effectivenessof rights

implementation in Scots law in respect of local authority tenants and housing and homeless

applicants to local authorities. This topic of study was selectedfor two reasons. Firstly,

there are general concerns arising from the literature review that current organisational

practices may adversely affect the actual implementation of rights. Secondly, there is a

limited range of studies that assessthe effectivenessof legal rights implementation in the

public housing sector. This study, therefore, represents innovative research into rights

implementationissues that have beenneglected in socio-legalstudies.

ResearchMethodolpgy

The researchon which this thesis is based comprisesthree main elements,namely a) a literaturereview, b) fieldwork and c) a set of conclusionsderived from the research.Each

componentis now clarifiedin turn.

(a) Literature Review

I The literaturereview evaluates a rangeof issuesto setthe contextfor the detailedrights analysisthat is carriedout in the empiricalresearch. This evaluationinvolves a review of the existing literature on the implementation of legal rights in general, and housing law in particular,in order to identify the rangeof factorsthat might affect the implementationof housingrights. In view of the limitednumber of specifichousing studies that examinerights implementationissues, it was necessaryto considera broadrange of researchstudies drawn

17 from a variety of fields, including law, political theory and social policy, managementtheory

and housing management. Further details are given in- Chapter 2. This review focuses on

contemporary studies, although reference is made to older studies-as required. This

examination highlights that factors capable of affecting rights implementation are both

complex and diverse, comprising a number of inter-relating themes. In order to evaluate

these factors, they were categorised for ease of analysis under the, following headings:

political and ideological factors; legal process; legal form and structure; remedies; "rights-

bearers"'capacity to enforcerights and organisations.Although this review confinnedthe

relevance of all factors to the question of rights implementation, consideration of

organisationalfactors proved to be extremely fruitful in identifying elementsmost Pertinent

to effective implementation of legal housing rights. Based on this analysis, then, it was

decidedto concentrateon the assessmentof organisationalfactors in the empiricalresearch.

Application of the theoretical model of systemstheory to organisational development

enabledorganisations to be perceived,not as comprisinga number of independentfunctional

activities,but as 'wholes' comprisinginter-relating functional activities. This modelenabled the identification of core elementscritical to effective rights implementation. Consequently, key issuesselected for examinationin the fieldworkwere as follows: organisationalculture

and structure; policies and documentation;implementation of rights; communications; workloadand methods of work; performancemanagement; and personnel.

(b) Fiekhvork

In order to test the hypothesisthat the group of factorsisolated for inquiry affect the implementationof legal housingrights, fieldwork was undertakenthroughout 1998/99in two Scottishcouncils formed at Local Governmentre-organisation in 1996. Thesecouncils are referred to as Council A and Council B respectively to preserve anonymity. Further

18 details are provided in respect of both councils in Chapters3 and 4. An important element of this fieldwork involved a critical analysis of legal rights implementation within both councils. Details of the specific rights examined, as well as the reasons for their examination,are provided below.

In carrying out the fieldwork researchinvolved thecollation of both quantitative and qualitativedata. This includedstatistical data, as required,to evaluatetrends of interest.

Data collectedderived from four principalsources detailed as follows: i) Documentation

Documentation assessedwas primarily of a policy and procedural nature concerning housing managementinformation, although it also included general council documentation.

Examples of documentationassessed were as follows:

9 corporate council policies

9 allocation policy

0 arrearspolicy

0 estatemanagement policy

9 homelessnesspolicy

9 repairs policy

9 tenancy agreement

* tenantinformation (leaflets etc) ii) Internal Data

Internalorganisational files andrecords were examinedto collateinformation that might shedlight on rightsimplementation; this involvedthe following documentation:

tenancyfiles/records

e organisationalmemoranda

19 0 organisationalreports iii) Individual CaseFiles

Individual casefiles from four areahousing offices were assessedinvolving a total of one hundredand two files in respectof CouncilA and one hundredand twenty six files in the caseof CouncilB. This enabledactual work practicesto be evaluatedin detail,in particular to assess whether administrative practices complied with legal requirements. File information materials assessedrelated primarily to information gleaned during 1999, although a minimal amount of earlier data was examined,particularly anti-social behaviour casessome of which had lengthy histories. Further details are given in Chapters3 and 4. iv) Interviews

In addition to analysisof documentation,fieldwork involved a total of fifty three interviews. This total represents c 4% of the housing managementstaff employed by

Council A and Council B. Of this number forty six interviewees were housing service employees, the others being specialist legal personnel (three) and tenant representatives

(four) who were interviewed to gauge alternative opinions and perspectives. With regard to the housinginterviewees, both housingofficers and more seniorofficers were included,thus affording the possibility of comparingpolicy maker views againstthose of frontline staff.

In respect of statistical information the twenty housing staff interviewed at area housing office level representover 10% of staff in eachof the four areaoffices under review, while seniorstaff interviewedconstitute over 50% of semorofficers in CouncilA and CouncilB respectively. Chapters 3 and 4 refer to officers and senior officers in the interests of confidentiality; this is extremely important given the sensitive nature of information provided. Senior officers compriseboth managerialand policy officers. Appendix I providesfurther informationon numbersof interviewees.As Robertsonand McGloughlin

20 (1996) point out, ideally research would survey the whole population. Practical considerations,though, require researchto focus on a sample that is representativeof the issuesunder examination,a requirement satisfiedby the above methodology. As indicated, four separate area housing office locations were used for the study, thereby providing a useful comparison of rights implementation throughout the council to ascertain whether consistencyof approachhas been achieved.

Rights Selectedfor Empirical Examination

The focus of this thesis was the evaluation of how effectively the housing law rights of individualsare implemented by local authorities;this wasbased on the literaturereview that revealed implementation of such rights as an area that had been the subject of limited research. This was shown to be of particular relevancein the context of Scottish housing managementpractice. In view of the wide range of individual rights available in law, however, it was possible to carry out'a detailed investigation of only a limited number of rights. The particular rights chosen are describedbelow. The major rationale in selecting these rights is that they are all major local authority responsibilities,as well as being areas that the literature review suggests require further inquiry. The four rights chosen for analysiswere a) the right of accessto personalfiles, b) the rights of the homeless,c) rights of repairand d) securityof tenure. a) Right to AccessPersonal Files

This right was selectedfor examinationfor three reasons. Firstly, this right representsan important safeguardfor individuals concernedwith a) what personal information is held by organisationsabout them and b) how suchinformation might be usedby theseorganisations.

For instance,information held on local authorityfiles may be used in eviction procedures and it is importantfor tenantsto accessthis datain preparinga defence. Secondly, there

21 has been no publishedresearch in the Scottish context regarding its application into practice.

Thirdly, this right has been in existencefor severalyears and it was interesting to examine whether any correlation existed between effective implementation of rights and the date rights areintroduced. b) HomelessnessRights

Although an areathat hasbeen the focus of muchresearch, two main reasonsexist for selectingthis issue for detailed assessment.The first reason is that researchhas often been general in nature as opposed to scrutinising in detail the actual working practices of employeesin the light of the "four hurdles",the key legal homelessnessprinciples. Indeed, the research undertaken in the case studies that addresses this question specifically representsresearch of an innovative nature within the Scottish housing context. The second reason concerns the current crisis of homelessness,the need to assesswhether persons arguably in the greatesthousing need are having their rights protected in practice., c) Rights of Repair

This group of rights was chosenfor assessmentfor two reasons. Firstly, and as is the casewith accessto files rights, rights of repair have been the subject of little researchvis-i- vis rights implementation issues. Indeed, and with regard to the statutory right-to-repair scheme,there has been no detailedexamination of what local authoritiesactually do in practicein terms of implementation.For this reason,then, the right-to-repairscheme is a focal elementin the casestudies when effectivenessof implementationregarding rights of repair are assessed.Secondly, repairs to housingare fundamentalto questionsof law such asthe tenant'sright to residein housingthat is "tenantableand habitable". d) Securityof Tenure

Security of tenure is a right that developedoriginally in the private sector housing

22 struggles to "remedy social evils by interfering with the rights of landowners" (Stewart

(1996) p2). But it is also a right that was deemedto be extremely important by membersof the tenants' movement and other groups throughout the nineteen seventies,their concerns assuagedeventually with the passing of the Tenants' Rights etc (Scotland) Act 1980'that createdthe securetenancy and, for the first time historically,introduced security of tenure for public sector tenants. Ensuring that landlords apply legal principles to protect tenants interestsis, therefore, an important areafor evaluation. c) Conclusions

Chapter 5 concludesthe thesiswith an evaluation of the principal issuesconcerning legal rights implementation that have been identified in previous Chapters, particularly those issues arising from the empirical study. Although findings must be conjectural to some extent given the limited range of the inquiry, principal issuesidentified are as follows: firstly, the literature review carried out in this thesis has confirmed that many previous housing studies, although highlighting issuesof concern between good practice and actual practice, have tended not to focus on how effectively rights are actually implemented within organisational practice. The evaluation of actual organisational process concerning rights implementationcarried out in this thesis represents,therefore, innovative researchin the field of socio-legalstudy. Indeed,this is the first major study to analysehousing legal rights implementationfrom a theoreticalperspective based on organisationalsystems theory.

Secondly,evaluation of actualorganisational. practice within the two councilsassessed in the fieldwork revealsan apparentdichotomy between explicit strategicobjectives in respect of commitmentto rights and actualimplementation of thoserights. Analysissuggests that this derivesfrom a variety of causes. The influenceof key individualsis undoubtedlyof importancein explainingthis dichotomybetween theory and practice. Yet more detailed

23 scrutiny suggestsineffective implementationof rights stemsfrom dearth of strategic planning that, failing to develop organisationalpractice in accordancewith systemstheory principles, fails to synthesisethe broad range of factors relevant to effective rights implementation.

Thirdly, the alleged discrepancybetween 'paper commitment to rights' and effective implementation of those rights indicates issuesthat should be addressedas part of future research studies. Indeed, it is suggestedthat evaluation of the effectivenessof implementation of all legal housing rights should be a focal point of future socio-legal researchin the field of housing.

24 Chapter 2: Factors Affectin2 1mviementation of Le2al Ris! hts

"How the law is put into effect is clearly as important as its content. The nature of the enforcementagencies used, the degreeof commitment of enforcementagents to implementation of law, their morale and -a closely related factor - the amount of resourcesavailable to ensurecompliance, are all shown to be extremely significant factors." (Cotterell (1992) p56)

" The 'rights' which the administrativesystem offers are so severely qualified that in practice people are reluctant to insist on obtaining what is due to them. Whatever their roots in social and economic forces, people's problemsare always dealt with on an individual basis." (CDP (1977) p23).

25 Implementation of Rights: An Introduction

Implementation of law is a perennial theme of socio-legal research.' The fundamental

purpose of this Chapter is to identify and analyse the key factors that affect the implementation of legal rights, particularly legal rights in the housing context. A secondary purposeis to highlight issuesthat require further research. This is achievedthrough an

extensiveliterature review, details of which aregiven below. In carryingout this reviewit is worth emphasisingthat law does not operate in a specific context but, as Loveland (1995) notes, "in a variety of interdependentcontexts" (p3). Legal theory, accordingly, can only be understood as part of social theory in general. This Chapter, therefore, adopts an inter- disciplinary perspectivein identifying the range of factors that affect rights implementation.

be Prior to assessing- and subsequentlycategorising - those factors deemedto most relevant to the debate, it is important to comment briefly on the relationship between law and social change. On a general note, for example,law can engenderchange in a variety of ways. The power of the judiciary in the interpretation and application of legal doctrine may set precedentsthat determine subsequentsocial actions, for instance,while the establishment of agenciesor comýnissionssuch as the Comtnissionfor Racial Equality strive to put Central

Governmentlegislative policy objectivesinto practice. Again, social changemay be pursued by imposing new legal duties on existing administrative authorities, or by using legislation directly to alter individualsocial or contractualrelationships, as exemplifiedby the Housing

Act 1988 in the context of the "deregulationof private rented housing arrangemente'

(Cotterell (1992) p58).

Yet, albeit that law can be instrumentalin promoting social change,theorists have stressedthat law by itself is not sufficientto bring aboutchange. As Ehrlich (1936) argues,

The term "implementation" has numerous connotations, including accomplishment, completion, enforcement, fulfilment, performance, and realisation (Chambers (1994)). The senseused henceforth in this thesis is that connoted by the term "realisatioW', ie conversion into fact. 26 "We shall have to get used to the thought that certain things simply cannot be done by means of a statute" (p375), that state law is more effective when it deals with prohibiting action as opposedto compelling people to act. Again, in developing this point, it has been noted that law may fail to promote changefor a numberof reasonsthat are highlighted below

Kay et at (1986) stressthe importance of political support as being influential in effective implementation, for example,the role of Central Government in supporting the legal right- to-buy provisions in respect of public sector housing. Evan (1980), in describing law as an instrumentof socialchange, cites several conditions that are necessary- albeitnot sufficient

- if law is to be implemented effectively.' Two conditions of particular relevance to this thesisinvolve a) the needto employboth positive and negativesanctions "to buttressthe laV' (Evan (1980) p561) and b) ensuring commitment by enforcementagencies to the legal provisions. As Evan (1980) notes:

"... the enforcementagents must themselves be committedto the behaviourrequired

by the law, even if not to the values implicit in if' (Evan (1980) p559).

Cotterrell (1992), in his major theoretical socio-legal study, offers additional insight, stressingkey elementsas follows: firstly, legalenforcement depends not simplyon actionby the state but, critically, on those actions taken by the rights-bearer. But the latter may not be willing to usethe law for a variety of reasons,both technicaland socialin nature.Technical reasons,for example,might includeabsence of effectiveremedies or incentivesfor peopleto implementlegal action. Social reasons,on the other hand, could encompassa coterie of factorssuch as unwillingness to usethe law becauseof fear of reprisals,or lack of resources.

Secondly,in Britain the enforcementof law may be delegatedto local authorities,

Evan (1980)cites seven conditions in total (SeeEvan (1980)pp560/561). 27 regulatory agencieswhose concernsrest not merely with law but with other objectives. For example,in the developmentof allocationpolicies, objectives are framedto take accountof not only legal requirementsbut the wishes and views of councillors.

Finally, and perhaps paramount, is the fact that discretion is a central feature of enforcementby local authorities. Yet, as Cotterrell (1992) stresses,"the use of discretion is determined largely by resources available and, for regulatory agencies such as local authorities, "'full' enforcement of law is realistically an impossibility given available resources" (p263). And lack of organisational resources might impact on rights implementationin various ways, for example,failure to establishadequate and accessible information systems for tenants and clients, or failure to train staff to carry out administrativeduties in accordancewith law. With respectto this latter point, for instance,

Loveland(1995) citeshow 'white collar' workersin public sectoradministrative posts have become proletarianised, that housing managementis a sector in which "jobs frequently involve low pay, minimal training, and limited promotion opportunities" (p23). Needlessto say, such factors imply that welfare bureaucraciesare likely to produce legally inaccurate decisionsthat may adverselyaffect the rights of individuals.

Literature Review: Sources

As indicated,this thesisis a socio-legalinquiry into factorsthat affectthe implementation of legal rights, of particular concernbeing the identificationof key factors affectingthe implementationof legalhousing rights within the local authorityhousing sector. In order to identify these factors, it was necessaryto undertakea literature review of an inter- disciplinarynature deriving insight from the following fields: political theory and social policy; law, in particular housing law; housingmanagement; and organisationaland

28 managementtheory.

The literature review identifies a wide range of factors as actually or potentially affecting the implementation of legal rights. In this Chapter they have been classified under the following headings: political and ideological factors; factors relating to the legal process; remedies; individuals' capacities to enforce their rights; avoidance and organisational. factors.

However, it is important to note that the factors are overlapping and interlinked rather than discrete and separate. Although the empirical researchdescribed in Chapters 3 and 4 examinesin detail the impact of only a limited range of factors in the implementationof legal rights in housing law, this Chapter discussesthe full range of factors that ýnight affect the implementation of rights. This is necessaryfor two reasons. Firstly, it is important to have some idea of the relative importance of different factors. Secondly, precisely becausethe factors interact and affect each other, each set of factors needsto be consideredin the context of other sets of factors. To give an example,in what follows political and ideological factors are distinguished from factors that relate to organisations (eg local authorities responsiblefor implementingrights). However, what organisationsdo is inevitablyaffected by the political and ideologicalenvironment, financial constraints and so forth.

In orderto ensurecomprehensive coverage of the issues,the literaturereviewed includes studiesfrom differentjurisdictions. However,given the aim of the thesisto identify key factors affecting the implementationof legal rights in housing law in the Scottish context, the review focusedon the analysisof majorScottish studies wherever possible.

29 Political and Ideological Factors'

By political factors is meantthe specific policies pursued by successivegovernments, the institutional structure of the state, and historical eventsand trends, all of which may have an impact on the implementationof particular rights. Ideological factors comprise those ideas andvalues enshrined in political theory andParty policy espousedby both goverment and agenciesof the state. Political positions are frequently identified by referenceto a spectrum that runs from 'left' to 'right'. This description was "drawn originally from where different parties sat in the French national assembly,with the conservativeparties sitting on the right and the socialistson the left" (Spicker (1995) p73). a) Political and Ideological Factors and the DevelopmentofRights

The developmentof tenants' rights prior to the late 1970's had been largely restricted to the private rented sector.Indeed, the focal point of public sectorlegislative developments had been to eradicateeither housing shortageor poor housing conditions, although economicrecession experienced in the 1970'sundoubtedly resulted in the retreat by both major political partiesfrom their earlierhigh-output policy, a retreatthat was also due, at leastpartially, to the 'easing'of housingshortage (Malpass & Murie (1994)).

As Loveland argues,the paucity of statutory legal rights enjoyed by council tenants until the legislativechanges introduced in 1980was mainlYattributable to Central Goverment emphasison the "importanceof preservinglocal authorities'decision-making autonomy", autonomythat would, arguably,have been threatened by the introductionof individualrights

(Loveland (1995) p89).4

3 This sectionof the thesisconsiders some of the majorhistorical, political and economicissues that are pertinentto the developmentof securetenants' rights. Thesefactors are evaluatedtogether rather than separatelyin view of their closeinter-relationships. 4 The HousingAct 1980in Englandand the Tenants'Rights Etc (Scotland)Act 1980in Scotland.Royal Assentfor both Acts wasreceived on 8/8/1980with the public sectorprovisions being operativefrom 3/10/80(Shelter (undated)). Circular 23/1980provided detailed guidance for local authorities. 30 Further, rights had been consideredunnecessary in Loveland's view since:

"the cross-party commitment to social democratic politics ensuredthat government

invariably pursued those policies which best served the 'public-interest'; from which

all individuals benefited" (Loveland (1995) p 11).

Why, then, the legislative shift in Central Governmentstrategy that led to the creation of a wide range of rights? In answeringthis question it is necessaryto comment on i) historic concernsvis-i-vis the relationshipbetween council landlords and their tenants and ii) economic and political matters relevant to rights implementation. i) Historical Developments

Already by the late 1960's and early 1970's, the nature of the existing council landlord:tenant relationship had been strongly criticised by various pressuregroups, as well as leadingmembers of the tenants'movement. The ScottishHousing Advisory Committee

(1967), for instance,pinpointed deficiencies in allocationpolicies as a centralproblem in

Scottish housing management; while early tenant participation and community development initiativesfocussed on broaderpolitical themes such as the needfor tenantsto challengerent rises posed by the Government's legislation of 1972 that extended 'fair rents' to council tenants, or challenged the Government to ameliorate the shortage of quality housing for rent.' And by the secondhalf of the 1970's,new Charterssuch as the National Tenants

OrganisationCharter of 1978 were demandingthat council tenantsshould no longer be treatedas second-classcitizens; that qua citizensthey were entitledto enjoystatutory rights entitlements as opposedto solely contractual tenancy rights granted at the landlord's whim.

Indeed,this period also gave rise to trenchantcriticism of the paternalisticand one-sided nature of many local authority tenancy agreements.(NCC (1976); HSAG(undated);

5 The Housing Financial Provisions (Scotland) Act 1972. 31 Atherton (1983).

And, according to Hague (1990), this movementtowards tenant participation was itself an important element in influencing the developmentof public rented sector tenants' rights.

Through its support for participation initiatives, for instance, in tandem with a legislative strategy that embracedthe introduction of statutory housing rights, particularly the right-to- buy, the Conservative Party was able simultaneouslya) to harness and contain potential community antipathy of a disunited tenants' movement dissatisfied with existing housing managementpractices, and b) to undermine electoral support for the Labour Party, now forced in opposition to re-assessits "traditional relationship", a re-assessmentillustrated in

Hague's view by Allan Roberts NT moving of a Bill in 1982 that proposed widespread policy consultationprocedures to be introducedbetween landlords and their tenants,as well as providing tenantswith options for carrying out estatemanagement. ' ii) Economic and Political Developments

Yet to conceive of the introduction of tenants' rights solely in terms of garnering political supportwould simplybe nalve. For majoreconomic and political changeswere stirring that were critical to rights development.Cuts to public expenditurecapital building programmes had beenslashed from the early nineteenseventies, for instance,such cuts occurringas the

State attemptedto restore market profitability in the face of a global econon-dccrisis in capitalism (Forrest & Murie (1988); Bullock & Yaffe (1975)).' And the extent of these cuts was indeedmassive. In 1974/75,for instance,expenditure on housing"made up 20% of all

Scottish public expenditure, (while) in 1981/82 the figure was 14%" (Shelter (1981) p25);

6 The Tenants (Consultation) Bill 1982 which was moved unsuccessfully. An alternative view is offered by Kilroy & McIntosh (1982) who suggestthat cutting subsidiesto reduce public expenditure is argued for by politicians of all parties "to cynically manipulate the (public) ignorance of the issues" (p19). According to them subsidiesare themselvesinflationary and should be reduced in favour of investment. Yet, perhaps this is to miss the point, for the crux of the matter is that social servicesface all forms of expenditure reduction in times of crisis as they are essentially unproductive, ic non-surplus value or non-profit making. 32 indeed the House of Commons noted that housing cutbacks accounted for over 75% of public cuts (Malpass & Murie (1994)). And it is within the context of this fiscal crisis that the links between economic factors and tenants' rights becomesclear. The creation of the secure tenancy form, for example, with its right-to-buy provisions enabled Central

Government to implement a strategy of privatisation to satisfy both a) policy objectives in respectof public expenditureand b) the broaderinterests of the market. With referenceto public expenditure,for instance,reduction in Central Governmentsubsidies was made possiblebecause income in the form of capital receiptsfrom salesto local authorities increasedsubstantially as a result of the right-to-buy provisions. Yet, as Malpass and Murie

(1994) emphasise:

this enormous flow of capital receipts was not used to boost housing public

expenditure, but rather enabled government to fund a major part of a declining

programmefrom receipts" (p 107).

The broader interests of the market were also served by promotion of privatisation, indeed Harloe (1985) arguesthat:

"Home ownershipis the modemform of privatehousing market and the form which

is most effectiv6 from the point of view of capital" (pxxiii).

Two pointswill sufficeto clarify this point. Firstly, despiteinitial reluctanceby building societies"to commit themselvesor earmark funds" (Forrest and Murie (1988) p99), private financein the form of mortgageloans to tenantsbuying their homeshas proven to be highly profitable for building societiesand other finance institutions. As Ball (1993) has noted, and with presciencegiven contemporarydevelopments in respect of local authority housing:

"The whole economicrationale of building societies,exchange professionals and

speculativehousebuilders is owner-occupiedhousing... the only groupingswithin

33 the structure of council housing provision with a strong interest in supporting its

continued existence(being) building workers and state housing employees"(p35 1)

Secondly, building societies have strong links with a variety of exchangeprofessionals with similar business interests, for instance, surveyors, solicitors and estate agencies.

Referring to the effectivenessof these links in promoting financial benefits, Merrett (1982) notes:

"These complex webs of functional relationshipsappear to work well, particularly in

businessand financial terms, for all but home-ownersthemselves" (p212)

And as Hague (1990) notes in respect of, not just the right-to-buy, but the other rights that providefor councilstock to be privatisedthat these:

mean new investment opportunities for the private sector of the economy, while

re-emphasisingthe inadequacyof the provision and managementof social need by

the state"' (p 25 1).

From a rights perspective it is important to note at this stage that the rights in the tenant's charter and the new rights for homelesspersons were being implemented in a context of expenditure constraint which limited the resourcesavailable for the realisation of housing rights. As Kay et al (1986) stress, however, most councils failed to implement rights effectively for reasons other than finance (minimum publicity, lack of training, little tenant involvement etc). To theseissues the thesiswill return.

Political Ideology

Political ideology is critical in gainingan understandingof both the developmentand

owner occupationin Britain standsat around70% of all households(Harriott & Matthews(1998); while in Scotlandthe figure remainslower at 61% (ScottishExecutive 2000). SeeDaunton (1987), Cole & Furbey(1994) and Malpass (1996) for detailson policy developments.SHA (1977)note that supportfor owneroccupation "began to be usedas a meansof encouragingacceptance of the existingpolitical and economicsystem and weakeningpeople's wish for radicalchange" (p 12). An unforeseenby-product of this privatisationprocess, of course,has been the massiveincrease in subsidiespayable to owner occupiersunable financially to pay their mortgagecosts. 34 implementation of rights. This is now examined by reference to these ideological perspectives that led to the development of statutory housing rights prior to assessing political actions taken to effect theselegal principles into practice.

Political ideology does not exist in a vacuum. And a rights-focusedphilosophy too, must be understood by reference to a set of underpinning beliefs and values. Loveland (1995) highlights how the legal shortcomings of the council-tenant relationship were the butt of increasing criticism from the late nineteen sixties, in particular how the National Consumer

Council 1976 report, Tenancy Agreements, "pushed the issue into the mainstream of political debate" (p127). Of particular interest from an ideological perspective,though, is that the philosophythat underpinnedLabour's Housing Bill (1978)with its focuson security of tenure derived, not from "an idea of consumerismrooted in the free play of market forces"', but from the ideologicalvision of the earlier Wilson Labour Government,an ideological vision that "rejected market forces as the primary determinant of housing allocation7 (Loveland (1995) p27)."

The ideological basis that underpinnedthe Labour Party's proposed 'Tenants' Charter' was,therefore, an attemptto "placesubstantive and procedural constraints on governmental discretion in managing a social service"(Loveland (1995) p28). The Tenants' Charter, eventuallyenacted by the ConservativeGovernment, was - right-to-buyprovisions excepted " - scarcelydifferent from the original Labour Charter. Indeed, subsequentpolitical and legislativedevelopments confirm that both major partieshave convergedideologically in

9 For detailsof consumerismas an ideologysee Rhodes (1987) and Hambleton (1988). Cannadine(1998) noteshow the consumeristvision of treatingpeople as individual customerswith choiceseeking to becomeproperty owners is synonymouswith the valuesbestowed upon Margaret Thatcher, Prime Minister, in her formativeyears in Grantham. 10 As Harold Wilson asserted:"The plain fact is that rentedhousing is not a properfield for privateprofit" (Cullingworth (1979)p6l). Other exceptionsbeing the exclusionby the ConservativeParty of tenants'consultative committees (Kay et al (1986))and a right to consultationabout rent levels. 35 respect of strategic housing policy objectives.As Malpass (1990) has argued:

"The Labour Party initially opposedthe introduction of a statutory right for council

tenants to buy their houses,but by 1987 the principle of sales had lost its earlier

controversialedge, and indeedcouncil housingas a whole had lost much of the

support that it had receivedfrom the Labour Party since the beginningof the

century" (p53).

The legislation enactedin 1980, then, representsa fusion of distinct political ideologies.

On the one hand the political commitment to enhancingtenants' legal housing rights in the public housing sector; on the other the consumerist philosophy espoused by the

ConservativeParty in respect of the right-to-buy to provide tenants with an opportunity for exiting the public sector (Loveland (1995)). Indeed, this philosophy is nowhere more clearly expressedthan by Malcolm Rifkind in his striking responseto fellow membersduring parliamentarydebate when he confirmed:

"... the whole purpose of the Tenants' Rights Etc (Scotland ) Act is to allow those

who wish to do so to buy their homes"(Hansard Debs, Sixth Series,Commons, Vol

8,1980/81, July 6-July 17).

In short, legal rights developmentsreflect the contemporarypolitical and ideological strategies of both major political parties, developmentsthat Gamble (1994) suggestshas resulted in a "mass of private-property interests willing to support market solutions for problemsof public policy" (p2l9). " b) Political Supportfor theImplementation of Rights

The thesis now turns to assessi) how the extent of political support from Central

Governmentactions can affect the implementationof rights by local authoritiesand ii)

12 This focuson individualismaccording to Handy(1997) is extremelydisruptive societally, leading the writer to claim that: "Untrammelledindividualism corrupts a nation. It leadsto an emphasison rights, with no regardto dutiesor responsibilities"(p27). 36 reasonsfor political action, or inaction. And perhapsthis point is best clarified by the most exercisedright of all, namelythe right-to-buy."

The origin of public sector sales actually dates back to pioneering efforts of Tory

Councils such as Birmingham in the 1960's. Policy motivations that led to this development includedthe desireto dismantlethe public sector,creation of an enterpriseculture, and electoral advantagesstemming from the salespolicy (Stoker (1991)). Yet sales remained relatively low. Indeed, the success of the right-to-buy legislative measures is at least partially due to a variety of Government interventions as follows. Firstly, Goverment intervention in terms of promoting the right-to-buy far exceeded previous promotional activities in respect of rights issues.By May 1985, for example,the sum of 12-3 million had been spent on promoting Council house sales(Stoker (1991)). In addition, the Government contacted a total of two hundredlabour-controlled local authoritiesto evaluateprogress concerningtheir right-to-buy practices. This can be contrastedmarkedly with lack of support by both the Thatcher and Major Governmentsfor other rights. For example, there was little concern shown by the Governmentbetween 1979-1996 as to whether or not local authorities'delivered' homelessnessrights effectively. As Loveland(1995) points out, the

DoE's 1989 Review of the HomelessnessLegislation, paragraph5, expresses:

46 satisfactionwith councils' varying application of the Act's discretionary

elements,noting that the 'areas of uncertainty' had been filled by custom and

practice;by more or lessformal exercisesin co-operationand co-ordinationbetween

local authorities; and by interpretation of the courts" (p324).

Secondly,unlike most tenants'rights where individualactions through the courts are

13 SeeMurie (1996)and Rowntree (1998) for detailedinformation on the impactof salespolicy. Rowntree notesthat overtwo million dwellingshave now beensold under the right-to-buyand relatedpolicies. See ClaPham.et al (1990)and Pinto (1995)for detailsof housingpolicy developmentsin general.

37 required if rights are to be realisedin the face of recalcitrant local authority practices, this is not the case in respect of the sale of social housing that represents a major element of

Government housing policy. Indeed, the Secretary of State has extensive powers to intervenewhere "landlords attempt to resist or hinder salespolicy" (Hughes & Lowe (1995) p82)." And this threat was invoked by Michael Heseltine in 1981 in response to local authority recalcitrance in both England and Scotland vis-i-vis sales policy implementation and delivered with such panachethat all resistancewas quashedby August of that year

(Ascher (1983)). In the case of Norwich City Council, for instance, although the Council processedright-to-buy applicationsas per the equivalentEnglish legislation, the Secretaryof

State, Rt Hon Michael Heseltine, deemedthe timescaletaken by the Council to processsuch applications to be unsatisfactory and intervened accordingly by, serving a Notice of

Intervention.15 In the court process that followed, the intervention was accepted as reasonablein the circumstancesand that the Council had not fulfilled their legal obligations

had of failing to effect right-to-buy applicationstimeously, that tenantswishing to buy faced

"intolerable" delay (Forrest & Murie (1985) p106). Defenceslodged by Norwich Council to the effect that slow progresswas the result of such factors as staff shortagesand the need to

" meet a range of housing priorities were not acceptedby the court. In Scotland, too, there were many anti-sales campaigns(eg Glasgow, Stirling). Dundee, in particular, protested vehemently against the new right-to-buy provisions with the Secretaryof State for Scotland calling:

Interestingly,despite the fundamentalimportance of salesof Councilstock within governmentsocial policy, at Local Governmentre-organisation in 1996,the UnitedKingdom retains"the largestsocial housingstock of any WestEuropean country, with around12 million peopleliving in Councilhouses" (SeeStewart Fleming's 'Will anyonetalk abouthousing? ' in the New Statesman,12/12/97. This situationis now rapidly changing,though, as a resultof the burgeoningnumber of stocktransfers to other landlords. 15 Under section23 of the HousingAct 1980. " Norwich CC v SecretaryofStatefor the Environment[1982] All ER 737. 38 inquiry 44 a public to determinethe legality of refusals by both administrators and

councillors to implementthe Act. " (Ascher (1983) p 13).

Finally, Central Government has actively extendedthe legislation in respect of salesto

promote its strategic privatisation policy objectives in respect of the public rented housing

sector. This differs considerablyfrom other tenantrights where developmentshave been

rather more tardy. For example, despite concerns about the value of judicial review as an

effective remedy (see pp 70-73 following), it was not until legislative changesin 1996 that

appeal rights were conferred that entitled applicants aggrieved by the decisions taken by

local authorities to appealto the County Court. It is emphasised,though, that these changes

applied only in England and Wales and not in Scotland."

As Kay et al (1986) argue, in contrast to the right-to-buy where Government pledged

much support, implementation of other legal rights was entrusted largely to local authority

discretion without Central Government intervention, reflected for instance in lack of

publicity and pressure on local authorities to ensure the realisation of rights into practice.

This sectionconcludes, then, with an attemptto explainthe lack of Central Government

supportfor the implementationof theseand other rights.

The first reasonis that, unlike right-to-buyprovisions that lie at the heart of Central

Government strategy, other tenancy rights are not integral to the core privatisation

objectivesof this strategy.Making tenantsaware of their rightswas, therefore, undoubtedly

of low strategic priority.

The secondreason concerns the historicalrelationship between Central Government and

Local Government,clarified by referenceto two points. Firstly, Central Governmenthas alwaysregulated local authorityactivities, although controls have increased considerably in

17 Act 1996, The Housing s202, gives an applicant a right to review local authority decisions within twenty one days of receiving the authority's decision. 39 recent years, particularly fiscal and legislative controls in the case of housing (Wade &

Phillips (1977)). Thus, Letwin (1992) notes that local authority powers were already defined by legislation enacted in 1835." Yet, as Loughlin (1992) clarifies, administrative adjudication has long been integral- to the achievement of Central Government policy objectives,the delegationof law enforcementto local authoritiesbeing "necessaryfor the efficient conduct of businessin the modem state" (p 167).

The third reason,and most crucial for understandingwhy Central Governmenthas intervenedlittle in the implementationof tenants' rights, is that althoughlocal authority powers "derive either expressly or by implication from statute" (Wade and Phillips (1977) p357), local authorities themselvesretain much discretion in the exerciseof duties conferred on them by statute.19 In the case of housing, for example, local authorities have always retained autonomy in terms of exercisingtheir legal duties and obligations in respect of both their housingstock andtheir tenantssuch as in allocationswhere local authoritiesare free to devise whatever allocation systemthey deem appropriate provided that it takes account of the relevant legal provisions. Thus, although the creation of the panoply of statutory tenants'rights mayrepresent a deviationfrom the traditionalcontractualised landlord: tenant approachto rights creation, Central Governmentregard the implementationof such rights as beinga delegatedfunction of local authoritieswith grievancesto be addressedby remedies available. As Jones (1986) notes, local authorities are elected, statutory bodies'legally independentof CentralGovernment. And, thoughlocal authoritiescan exercise considerable local discretionand power within the confinesof statuteand the principleof 'ultra vires:

"Statutedoes not envisagelocal authoritiesjust as implementersof policy decidedin

central government. They are empoweredby statute to be themselvespolicy-

18 The Municipal Co[porations Act 1835. 19 This does not apply, of course,to proposed council housebuilding programmes that are subject to detailed scrutiny and are financially controlled by Central Government. 40 makers"(Jones(1986) p65).

The final reason suggestedfor lack of political involvement in the implementationprocess is largely conjectural in nature. It seems feasible to suggest that Central Government commitment to rights implementation- the rights associatedwith privatisation excepted - remainedlukewarm. The implicationof this, of course,is that rights talk is often mere rhetoric,used essentially to attractpopular support and separated in both thoughtand action from questions of implementation, reminding one of Cotterrell's (1992) assertion to the effectthat:

"... there may be laws createdsolely or primarilyto put certainsymbols or ideals

into the statue book. In the drafting and enactmentof this legislation there may be

no realistic considerationof the possibilitiesof effectiveenforcement of the laW'

(p54). c) Political Supportfor the Implementation of Rights: the Role of Councillors

The previous section focussedon political and ideological influences,on rights developmentand the role of Central Governmentin implementation. Yet it is also important

in to considerthe role of councillors- the 'political' element local government- in the implementationof rights.

Analytic studiesof policy developmentwithin local authoritiesreveal three basic models, namely,a) the formal model,b) the technocraticmodel and c) the joint elite model(Wilson and Game(1994)). The formal modelthat representsthe traditionalperspective of power within the local authority sector considerscouncillors to be the makers of policy with officersgiven the delegatedauthority to implementthat policy. The technocraticmodel, on the other hand,has focussedon the primary role of seniorofficers as the dominantforce, their power stemmingfrom specialistprofessional and technical knowledge aaffin & Young

41 (1990)). Both models have been subject to detailed criticism in recent years, though, by

adherentsof the joint elite model. It has been argued, for example,that the rise of assertive

councillors has "in some authorities effectively checkedany independentpolicy aspiration of

officers" (Wilson and Game (1994) p271). And Laffin and Young (1990) point out:

"The relationshipwith the elected membershas changed. The old stance of

alooffiessfrom the political processand from the politiciansis less and lessviable.

Chief officers and other senior officers have to work more closely with their

membersthan used to be the caseduring the high tide of professionalism.Any chief

officers who hold themselvesback from the political process may well be simply

consigningthemselves to irrelevance7'(p92)

Yet the professional knowledge of senior officers remains an important resource, a

resourcetapped into by a liýnitedgroup of senior councillorswho join with the senior

officers to control policy formulation. This corporate managementmodel also entails that:

"the backbencher,the ordinary ward councillor, is further from the sourcesof

decisionand power (such as they are in the town hall) than ever before. He is

excludedby the high-levelpartnership between leadership and senior officers and

takes little part in the policy planning process" (Cockburn (1978) p 169).

As Loveland (1995) highlights, though, it is important when evaluating the role of

councillors in the policy-making process to contextualise analysis. The role of elected membersin policy developmentvaries amongcouncils. In two of Loveland'scase study councils,for example,"elected members appeared to havelittle control over, or interestin7' homelessnessimplementation (Loveland (1995) p126).

And, with specificreference to the Councilswhose approach to the implementationof rights is examinedin this research,councillor influenceupon the specific policies under

42 review is extremely limited. Indeed, discussionswith senior officers confirm that policy developmentin respect of the rights issuesunder review was delegatedwholly to staff. The drafting of policy documentation, accordingly, was the responsibility of senior officers as was - by implication - the inclusion or omission of relevant rights implementation. For this reason,then, the role of councillors in policy detenninationdoes not feature in later

Chapters. d) Ideology: Ae NewPublic Management

The earlier discussionof political ideology emphasisedideas specific to housing policy.

However, another set of ideas - that rnight equally be describedas an ideology - the New

Public Management (NPM) has had a profound impact on the performance of all local authority functions, and this included effects on the implementationof rights in housing law.

Rationalisation processesimplemented by Central Government permeate all societal levels,including the local authorityhousing sector. Theseprocesses, detennined by market- basedpriorities, have led to a situationin whichthe boundariesof housingmanagement have blurred, and the traditional autonomyof local authority housing managementhas been transformed. Four aspectsof Central Governmentstrategy are now examinedbriefly

(citizenship,compulsory competitive tendering, best value, and the NPK and their effects on the implementationof housingrights considered. i) Citizenship

Adherenceto the principlesof citizenshiplies at the heartof CentralGoverment political ideology as well as general strategy, for instance,promotion of policies to eradicate social exclusion.And citizenshiphas been defined as an approachthat seeksto secure:

"... the frameworkof rights and resourceswithin which individualscan pursuetheir

43 own conception of the good in their own way" (Plant (1988) pl)".

Central to the concept of citizenshipýis the assumptionthat common values exist within a pluralist society that comprises different groups and classes. The role of Central

Government, then, is to develop political strategies that harness social and economic resourcesin the interestsof the communityas a whole; in short,to take political actionthat secures"the rights and resourcesof citizenshipwithin a mixed economywith some degree of private ownership".(Plant (1988) p 1).

In their role as agents of Central Government, most Labour Party controlled councils espouse commitment to citizenship values." In so doing, local authorities align themselves to supporting a rights-basedstrategy that entails:

"Residents, tenants and owner occupiers, need a clear sense of their rights and

responsibilities,for andto eachother andto the communitythey live in as a whole.

These rights include the right to security, the right to a safe community and the right

to participate in decisionsbeing made about thenf' (CIOH (2000A) p 18).

Analysis of recent studies suggests, however, that professed commitment to the principlesof citizenshipmay be rhetoricalin naturefor a variety of reasons. Mullins and

Niner (1998), for instance, in discussingthe question of homelessness,stress the difficulty of.

"implementingcitizens' rights to housingand consumerchoice in a context where

supply is limited in relation to needs" (Mullins and Niner (1998) p 195).

Mullins (1998),on the otherhand, argues that a gap existsbetween policy rhetoricvis-i- vis commitmentto rights and actual implementationof these rights for other reasons.

20 For detailson the developmentand meaningof citizenship,see Barbalet (1988), Marshall (1950), MacPherson(1985), Partington (1993) and Twine (1994). 21 Seepp 112-113following for a discussionas to how this impactson organisational.culture and, more explicitly, relatesto issuesof rights implementation. 44 Unequal power relations existing between council landlords and their tenants, for instance, entail that landlords are either unwilling to "respond to market signals from dissatisfied tenants"; while tenants' ignorance of specific services"can make it difficult for tenants to play their expectedrole as critical consumers"(Mullins (1998) p 255).

Further, Mullins (1998) suggeststhat the implementation deficit arises becauseof the symbolic nature of professed policy statements. Referring to the homelessnessrights introduced by the legislation in 1977, for example, Mullins (1998) argues that an

"implementation deficit" in respectof theserights arosebecause of

"Local factors such as political control, pressure of housing need, the pressure or

absenceof local advice centres and legal advice were important in producing these

variations" (p 256).

The thesis will return to this theme in Chapters3 and 4 ii) Compulso!3ý Competitive Tendering

Compulsory competitive tendering of housing managementservices was required by two local government Acts.22 In accordance with this legislation the bulk of housing managementwas to be the subject of market tendering although certain exemptions applied, for instance,the applicationof the de minimis rule to the effect that "small value contracts shouldbe exemptfrom the CCT processas the economicbenefits of such a bureaucratic processcannot be justified below a certainpoint" (Hunter and Selman(1996) p28). As

Wilson and Game (1994) highlight, CCT was supported ideologically by New Right 'think- tanks' such as the Adam Smith Institute that had pressedfor legislation,lamenting "the dependencyculture imbued by the WelfareState" (p325).

The ethosof CCT is clearlyaligned, then, to the expansionof the market into public

22The Local GovernmentAct 1988and the Local GovernmentAct 1992,Sl 1994/1671added housing managementto the list of definedactivities to be subjectto compulsorycompetitive tendering under sections (2) (h) of the Local GovernmentAct 1988. 45 sector activities, a political developmentclearly in line with ConservativeParty ideological

support for the principles of consumerism." Current Central Government strategy has,

however,shifted and CCT has beenall but removedin favour of Best Value, indeedthe

Local Government Act 1999, Part I, has abolishedCCT in England and Wales. Section 3

(1) of this Act imposeson English local authorities a duty to make arrangementsto:

gcsecurecontinuous improvement in the way in which its functionsare exercised,

having regard to a combination of economy,efficiency and effectiveness."

iii) Best Value

The Best Value approach to local authority service provision is now central to

Government strategy, an approach consideredin more detail shortly. Prima facie, though,

Best Value principles might indicate commitment to the promotion of a rights culture

throughthe conceptof 'continuousimprovement' to which local authoritiesmust adhere. In

England, for instance,Tenants Compactsare to be establishedthat require local authorities

to provide rights to information, training and enforcement rights vis-a-vis the Compact;

while in Scotland, communicationswith tenants (as part of quality service provision) are to

be improvedby codesof practicebeing establishedunder the National Strategyfor Tenant

Participation."

Best Value principles advocatedby Central Governmentcan be surnmarisedas follows2l:

challengingall elementsof current service delivery; consultingwith service users that

involvesthe citizenshipconcept of empowermentthrough active participation; comparing

serviceperformance and costs with nationaland local indicators(as well as other providers);

and competingby market-testingthe service(or partsof it) (CIOH (2000)). Vincent-Jones

23 Pollitt (1988)highlights the fact that consumerismis not well-definedand that consumersvary, for example,those using the service,those waiting to useit, and thosebelieved to needit. 24 For further detailssee the CharteredInstitute of HousingGood Practice Briefing (2000)No 19, 'Quality and CustomerFocus'. 25 First publishedby the Governmentin June1997 (DETR (1998)). 46 (2000) points out that Best Value principles are extremely vague and, although received

more warmly than CCT by most authorities, the underpinningphilosophy of Best Value is to

encourageauthorities: "to adopt innovative solutions with competition at their heart" (p94).

And, as the Industrial Society (1999) emphasises:

"In-houseprovision should not be usedwhere there are more efficientand effective

meansof serviceprovision available" (p I).

In Vincent-Jones' view, the developmentof Best Value in no way reversesthe long-term

trend toward centralisation of Governmentpower. And, with its emphasison efficiency and

competitive factors, it remainsunclear to what extent it is conduciveto the proper

implementation of housing rights, no matter its apparent commitment to continuous

improvement.

Best Value doesnot operatein isolation,of course,and it is importantto considerthe

concomitantshift in public sectororganisational culture and management that contemporary

theoristsrefer to asthe NPM, managementchanges that haveswept aside the local authority

traditions of "administration,hierarchy and professionalism7'(Stewart and Walsh (1992)

p508), as well as reducingthe scaleof the public sectorin favour of an ingressby private

sector employersinto traditional public sector servicedelivery (Boyne (1998))."

iv) NPM Ideoiggy

In accordancewith NPM ideology,local authoritiesare conceivedas beingquasi-market

organisationsthat operatein a competitiveenvironment, organisations capable of financial

and performance scrutiny through performance management of essentially quantitative aspects(Dunleavy and Hood (1994)). With direct referenceto housing managementWalker

(2000), in his study of housingassociations, argues that the NPM has resultedin housing

26 As Boyne(1998) describes the process;"downsizing, outsourcing and de4ayering"(p48). 47 managementbecoming managerialised,a processreduced to competenciesand skills that is no longer worthy of the title profession', the latter essentially the province of specialist knowledge." In addition to managerialisation,Walker also stressesthe changing - and diminishing- role of local authority housing managementby referenceto the externalisation of housingstock, that is, the continualreduction in housingthrough stock transfersto the housing association sector. Integral to managerialisation is the development of a performancemanagement and businessorientated culture that aspiresto reduce costs, a culturethat caneffectively transmute into the reductionof servicedelivery. "

Turning now to the question as to how such political and ideological developmentsmight impact upon rights implementation, various points are worthy of mention. On a positive note, for instance, the commitment by the Government to service audits is, prima facie, an important step in the evaluation of current deficiencies, an evaluation that may identify whether current housing managementpractices comply with legal requirements. Again, the proposalto developcomprehensive and detailedconsultation processes augurs well for the developmentof a rights-focussedagenda.

Yet closerexamination of the proposals,particularly when assessedagainst the realities imposedby the NPM, indicatethat such strategies- far from being conduciveto rights implementation-are potentiallydetrimental. At the heart of the Best Value approach,for instance,lies commitmentto private sector dominanceof housingservice activities; and integralto this processis the overridingdrive to imposefiscal controls and achieveefficiency as cheaplyas possible. And Walker's (2000) commentsin respectof the managerialisation

27 For a detaileddebate on issuesof professionalismrefer to Laffin & Young (1990)and Stewart(1996). The latter suggeststhat the term "housingmanagement" when discussing professions is an oxymoron, the very word "management"suggestive that it is not a professionin the traditional senseof architecture, law, accountingetc. 28 Walker (2000),however, does indicate that 'housingplus' servicesmight be achievablethrough savings of time achievedby newtechnology, for example,call centresto dealwith routineenquiries. 48 process, too, are of great significance. Focus by staff on core performance business objectives, and the rationalisation ofjobs themselvesinto a seriesof job competenciesbased on process,could result in staff having insufficient knowledge to advisetenants of their legal rights, thus adversely affecting take-up of rights by tenants. Indeed, and a point taken up later in this thesis, the imposition of priorities upon staff to fulfil work objectives is often likely to run counter to the promotion of a rights culture.

Promotion of the NPM ideology, too, is unlikely to bode well for the developmentof a

in rights culture. For NPM organisationalactivities focus increasinglyon matters of finance, particular methods that can be adopted to curtail expenditure,as will be exemplified shortly by the limited budgets allocatedby housing authorities to the training function. And integral to these developments,it is increasingly the case that many senior staff appointments are

(particularly people with a managementor traditional recognised professional background

background." accountancy), as opposed to personnel with a specific housing management

And the links to why such developmentsmay not be compatible with promotion of a rights

despite strategy can now be clarified by consideration of two factors. Firstly, and the speculative nature of this point, the appointment of such types of staff reflects an

in focus, organisation committed to businessventures and dealings the market. Given this then, rights issuesare liable to receive little support, particularly if such rights issuesconflict

in with corporate financial planning." Indeed, Gallagher (1982) emphasisesthat - even the period precedingthe developmentof NPM:

"that too many managerstoday are opportunist managerswho become entangledin

corporate managementstructures and pursue 'professionalism' for its own sake7'

29The recentappointment of a housingdirector in a largeScottish local authorityto the positionof chief executivedoes not contradictthis assertiongiven that the personis qualifiedin accountancy. 30Managers supporting such rights initiatives,consequently, would find their employmentstatus extremely precarious. 49 (pl46). "

Secondly, in view of the non housing professional background of key organisational employees,their knowledge of rights issuesis likely to be extremely limited, as a result of which promotion of rights is scarcely to be expected, consciousnessbeing a crucial

determinantof action.

Summary

The development,of legal rights in the public sector housing field can be attributed historicallyto a numberof factors. At a political and ideologicallevel, for example,both major political Parties and the Tenants' Movement were concerned at the lack of rights enjoyed by tenants in the public housing sector. Yet the development of rights reflect not simply commitment to the needsof individuals. For promotion of a rights basedphilosophy was also conducive to the aims of broader economic and political strategy. For instance,the right to buy was supported vigorously by the Conservative Party, sales policy clearly compatible with the broader privatisation strategy that was being developed by Central

Govemment.

Local authoritieshave traditionallyretained much discretionin the administrationof public services,including the exerciseof their legal duties and obligationsin respect of housingstock andtenants of that stock. Suchdiscretion has continued in the mainfor local authoritiesas far as,the implementationof legalrights is concerned.General local authority autonomyhas, however, been affected in recentyears through the developmentof the NPK an ideologicalshift that conceivesof local authoritiesas being quasi-marketorganisations

31 Sincethe Gallagherstudy Walker (1998)notes - despiteuncertainty about the natureof housing its managementvis-A-vis professionalstatus (specialist knowledge etc) - the housingmanagement professionhas diversified into an arrayof differentareas that straddleall tenureforms, particularly the socialrented sector ie housingassociations, a diversificationthat lendssupport to the view espousedby Stewart(1996) that housingmanagement is managementwith specialistskills and knowledgerather than a profession,covering areas such as careand support,community development, urban regeneration and economicdevelopment. 50 that a) operate in a competitive environment and b) are subject to rigorous performance managementsystems to ensurevalue for money. Such developments,the thesis contends, are unlikely to bode well for the developmentof a rights culture despite espousedadherence to principles of citizenshipby supportersof the NPM.

Factors Relating to the Legal Process

As law is the concrete form in which rights are expressed,it is essentialto examinethe implications of the way in which laws are framed for the implementationof rights, the role of judges who adjudicatein disputes,and the remediesthe law providesfor infiingementor denial of rights. Deficiencies in any of these areas may defeat or impede the legislative intention to securerights to individuals.

The courts have long been regardedas central institutions of legal systems,legal doctrine historically stemming largely from "the accumulated wisdom of the judges" (Cotterrell

(1992)pl7). It is important, therefore, to offer a brief evaluation of jurisprudential matters that might be pertinent to understandingrights implementation. This evaluation is carried out by referenceto a) determinacy,b) the role of thejudiciary andc) remedies. a) Determinacy

The enterprise of evaluating the implementationof legal rights presupposesthat we can definethe rightsin question,yet this is often a difficult task. The possibilityof interpretative disputeis everpresent in law but variesfrom contextto context,some rules appearing more determinatethan others.

As Walker (1992) notes, many of the legal terms used in statute such as "reasonable" are vaguethereby permitting judges "to differ in opinionas to the decisionof a caseeven though the facts maybe establishedand the law well settled"(p178). This problemis not uniqueto

51 housing law but indeterminacyhas certainly revealeditself as a problem in a number of areas of housing law. The problem may be illustrated by an example from homelessnesslaw. A person has a right to have accommodationsecured if homelessand in priority need." The legislation goes on to say that a person is homelessif she/hehas no accommodation,a point that will be dealt with more fully in Chapter 3 when the legal rights under scrutiny are summarised.The legislationdoes not, however,define "accommodation" with the result that the actualmeaning to be ascribedto the concepthinged on subsequentcase law. - Thus, in Parr, it was held that accommodationhad to be "appropriate" and excluded accommodationsituated 150 miles away from the defendant'shome. 33 In the words of Lord

Denning MR:

"That means of course that the house - as a dwelling - must be appropriate for a

family of this size. It musthave enough rooms to househis wife andfive children. If

it is in an areawith which he hasa local connection,this is good enough.He cannot

reasonablyrefuse suitable accommodation in his own area. But it is differentwhen

the offer is only accommodationin a far-off area with which he has no local

connection.A near-byarea of the sametype might be appropriate.But not an area

150miles away where... I know that beggarscannot be choosers,but they shouldbe

in given some consideration- so that they are housed a suitable environment" (p98).

Yet this decisionwas heldto be wrong in the now infamousPuhlhofer case, in which the

Houseof Lords took the view that "accommodation"meant any placethat could reasonably be describedas accommodationin the ordinarymeaning of that word, without a qualifying adjective (Cross (1995))." Thus, although Diogenesin his tub would not have had

"accommodation",a family living in a guesthouse with bedroombut no cooking facilities

32 The Housing (Scotland) Act 1987, s24. 33 Rv Wyre Borough Council, exp Parr (1982) 2 HLR 71. 34 Puh/hofer v Hillingdon London Borough Council, [19861 AC 484. 52 would have accommodation. This decision was arguably inconsistent with the aims of the original legislation which was amendedin 1986 (Robson & Poustie (1996))."

Other statutory provisions are much more open-ended. Discussing the words used to describe those to whom preference should be given in the allocation of council housing,"' for example, Shelter argue that the legal duty, despite being enshrinedin statute, has little practical relevance." Examplesof the terms used in this section are "reasonablepreference',

"large familiee' and "unsatisfactory housing conditione'. According to Shelter (1982),

"such terms are vague and virtually impossibleto enforce though the courts. Thus, from the point of view of enforcing an individual's rights, the section is useless"(p5).

This criticism appearsto beg the question of whether the legislation is intended to confer enforceable rights to housing." It is important to stress, for example, that legislative

in provisions enactedby Central Government are often so drafted to preserve - addition to

local discretion in their delivery judicial discretion - substantial authority of services, as " it is opposedto the encouragingof rights take-up through the courts. Thus, more plausible indeterminate. to suggest that legal principles by their very nature must be As Schneider

(1992) writes:

"In modem society the law regulates the complex behaviour of millions of people.

broadly be Yet To do this efficiently - to do this at all - applicablerules must used.

such rules are bound to be incomplete, to be ambiguous,to fail in some cases,to be

unfair in others" (p47).

35 The Housing (Scotland) Act 1987, s 24 (3) (d). 36 This is a technical housing managementterm and is synonymouswith the term lettings". SeeHooton (1996) for full details of housing terminology. 37 The Housing (Scotland) Act 1987, s 20 (1) 39 The Shelter point also obscuresthe fact that failure to stipulate clear entitlement to rights is not synonymouswith the denial of someone'srights. 39 Other theorists offer different perspectivesof course. Cross (1995) argues that indeterminancy stems from inadequate consideration by the Parliamentary drafter; while Loveland (1995) stressesthat legal terminology is often indeterminate for political reasons. In short, there may be different explanations for different statutes. 53 it be However, would wrong to assumethat talk of rights is irrelevant in the face of such

open-ended statutory terms. There are well established legal principles governing the

exercise of administrative discretion so that the citizen at least has the right to have the

discretion exercisedproperly, ie accordingto those standards. b) YheRole of the Judiciary

We have alreadynoted how judicial interpretationof statutoryprovisions can make a difference to their meaning. Contemporary housing law is increasinglybased on statutory provisions,and the role of the judiciary in the developmentand implementationof such provisions remains significant, particularly as judges in effect continue to make law through statutory interpretation (Griffith (1997)). For example,judicial interpretation may make a differenceto the contentof rights as in the Pullhofer andAwau cases.40 Judgesalso make law through the developmentof the common law which remains significant in the landlord/tenantcontext. A theoreticalappraisal of the role of thejudiciary is now offeredto assesshow this might affect the implementation of legal rights, although this is not a comprehensivereview given the aims of this thesis. This review coversi) interpretingthe law, ii) judicial discretionand iii) judicial expertise. i) Interpretingthe Law

In an early study, Jennings (1935) affirmed that the role of the judiciary is primarily concernedwith "safeguardingindividual rights in the accomplishmentof modem social purposes" (p428), a description that symbolisesboth the independenceand alleged impartiality of the judiciary, the individual judge aloof from egoistic concerns seeking to ensurethat justice is metedout. Accordingto Jennings,then, the role of the judiciary is to ensurethat legislationis not interpreted"against public policy in the interestsof private

40Puhlhofer v Hillingdon London Borough Council [19861AC 484; Rv Brent London Borough Council, ex p Awua (1994) 26 BLR 539, CA. 54 property" (p454)". Jenningsmodifies this, though, by reference to defects in the judicial system that may result in decisions suggestive of judicial bias, decisions that result from ignorance of the issuesunder consideration,for example,ignorance of the complex areasof modem housing legislation."

An ideologicalgap existsbetween the aboveperspective, however, and that offeredby adherents of the view that the judiciary operates primarily in the interests of the state.42

Laski (1925), for instance,claims that the Poplar judgement by the House of Lords shows the latter to be "the unconsciousservant of a singleclass in the community"(p848). Yet perhapsthe most vociferous exponent of this school of thought that considersthe judiciary to operate in the interests of the ruling class is Griffith (1997). Although judges are, in

Griffith's view, impartial insofar as judgements are not consciously prejudicial, Griffith's fundamentalclaim is that judges "are not and cannotbe neutralin the senseof havingno policy interest in the outcome of the casesthey decide" (Cotterrell (1992) p233). Griffith argues this on the premise that judges must make political choices pertaining to the protectionof the publicinterest, judicial interpretationof the publicinterest detennined by:

the kind of peoplethey are and the position they hold in our society... this

position is a part of establishedauthority and so is necessarilyconservative and

illiberal"(Griffith (1997) p336).

41 Jennings(193 5) citesfour principal defectsthat affectdecision-makinj in housingcases, namely a) commonlaw rulesof interpretationare confused,b) technicallimitations of commonlaw rulesand their relevanceto housing,c) flaws in the rulesof interpretationthat allowjudicial biasagainst reform ie allowingjudges ignorant of practicalhousing issues to adjudgethese very issues,and d) incompatibility betweenlengthy legal timcscalesfor resolvingissues and the socialissues that needto be addressed urgently. 42 Fennell(1986) argues that the decisionin Robertsv Hopwood[1925] AC 578 representsthe beginningof the processof usinglegal meansto suppresspolitical oppositionto the government,a casein which the Lords upheldthe District Auditor's decisionto surchargecouncillors of the LondonBorough of Poplar who had agreedto pay both femaleand maleworkers a minimumwage, but at a level held to be unreasonableand contraryto the MetropolisManagement Act 1885. This representsan important ingressby CentralGovernment into local political affairshitherto regarded as being the responsibilityof local councils. 55 In Griffith's opinion, the public interest comprises three elements, namely a) the protection of state interests, b) the preservation of law and order, and c) the promotion of right-vving political and ideological interests. The principal function of the judiciary in

Griffith's view, then, is to serve "the prevailing political and economic forces of contemporary capitalist society" (Griffith (1997) p342)), albeit judicial interpretations regarding the public interest can result in judgements incongruent with central government policy. Indeed, judges are individuals, too, capableof being swayed both intellectually and emotionallyby the casesbefore them.

With specificreference to housingmatters Griffith cites the Awua caseas "in effect implementing government future policy" vis-h-vis homelessnesslegislation. " In this case involving intentional homelessnessLord Hoffmann stated that nothing in law "caused a person to be homelesssimply becausetheir accommodationwas temporary, short term or precarious until they were within 28 days of losing it" (Madge (1998) p618)." Indeed, as

Griffiths argues, the judicial decision to regard accommodation as not being synonymous with settledaccommodation altered hitherto interpretations of homelessnesslaw so that:

"Overnightthousands of tenantswho believedthey hadsecure accommodation for as

long as they fulfilled their contractualobligations found that the period of their

occupancywas for the local council to decide" (Griffith (1997) p145).

Loughlin (1992)notes a majorbenefit of the Griffiths' approachas beingits tendencyto analysecritically court processesand highlighttheir underlyingvalue assumptions,in short an approachthat is "an exercisein continuousde-mystificatiorf' (p199). But Griffith's position can be criticisedfor failing to take accountadequately of both the natureand the diversity of judicial decision-taking(Loveland (1995)). Cotterrell (1992), for instance,

43 Rv Brent London Borough Council, ex p Awua (1994) 26 IILR 539, CA. 44 The Housing Act 1996 s175. 56 challenges Griffith's position because of its theoretical ineptitude in accounting for the dichotomythat existsbetween a) the judiciary as an arm of the Governmentand b) the judiciary "as legitimators of the legal and social order necessarilyoperating 'at ann's length' from Government" (Cotterrell (1992) p236)). In short, the judiciary must balance state interests against the need to ensurethe integrity of legal doctrine and principles, failure to maintain such integrity entailing a possible"diminution of their status in the eyes of professionallawyers as well as citizens7'(Cotterrell (1992) p235).

Again, and with referenceto housingissues, the Griffith positioncan be challengedon grounds of theoreticalinadequacy. In the case of homelessnessreferred to above, for instance, it is unclear how the Awua judgement could serve the interests of any particular class. Nor doesthe Griffith perspectiveaddress adequately the fact that stateagencies may themselveshave conflicting interests. Althoughreduction of homelessnesslegal re-housing obligations may benefit the interests of certain local authority landlords with limited resources,for instance,failure to dealwith homelessnessmay conflict with anotherCentral

Government policy objective of eradicating 'social exclusion'. In short, society comprises many groups with potentially competing interests and there is simply no single 'ruling class' group whose intereststhe judiciary serve. Heterogeneousinterests are reflected in the housingmarket, too, where both public and private sectortenures exist, the latter based essentiallyon the profit motive,while public sectorlandlords are agencieswhose motives for action have historicallybeen rooted in welfare concerns(see pp following). Given the plethora of interests,both individual and collective, inherent in these different tenure systems,it is simplynot plausibleto regardjudicial decision-makingas servingthe interests of oneparticular class.

Suchcriticism is alsosupported by othertheorists who espousethe view that insufficient

57 data aboundsto validate the occurrence of class-orientatedjudicial prejudices, that current theories are consequently "epistemologically flawed" (Robson (1979); Partington & Ifill

(1991)). And a particularly interestingtheory is expoundedby Robson (1979) in his seminal researchwork concerningthe role of the judiciary. Robson (1979) concurs with the Griffith perspective insofar as the judiciary is concerned to defend property rights within extant political economy. However, Robson (1979) also assertsthat the judiciary are not merely

"functional epiphenomenaof their class interests", that they remain capable of "operating against dominant state interests" given the autonomousnature of the judiciary within British society (p508).

And considerationof broad numberof differentjudicial decisionssuggests that the

Robson position approximatesmore closely to the truth. Although judicial decisions vary considerably,for example,judicial decisionsto supportindividual tenants against landlord evictionactions are well documented,such as the decisionnot to evict tenantsin rent arrears in WoodspringDistrict Councilv Taylor on the basisthat the reasonablenesscriteria had not beenestablished; " while in Rv Hammersmithand FulhamLBC it was deemedthat failure to pay the rent was not conclusive evidence of intentionality." Again, other case law suggestiveof judicial interpretationthat promotestenant' interestsis revealedin Glasgow

District Council v Erhaiganomain which it was heldthat clearand proper summonsshould includestandard averments covering service of notice,statement concerning rent arrearsand a statementthat it is reasonableto grant an evictiondecree. " It shouldalso be noted,with regardto the specificrights underreview, that no judicial caseshave occurred in respectof disputesconcerning the right-to-repairscheme, whereas disputes concerning access to files

45 WoodspringDistrict Councilv Taylor (1984)4 BLR 95 46 Rv Hammersmithand Fulham LBC ex parteLusi (1991)23 BLR 260; Rv TowerHamlets cx parteRouf (1991)23 HLR, 460. 47 GlasgowDistrict Councilv Erhaiganoma,1993 SCLR 592 58 issuesare dealt with by local authorities as part of intemal appealsystems.

What, then, canbe saidabout the relevanceof Griffith to judicial decision-taking?Such an approach, it seems,fails to explain the variety and breadth of decisions taken by the judiciary, decisionswhich are largely unpredictablegiven the nature of the work perfonned by the latter. And, asLoveland (1995) adds:

6'... one could hardly expect uniform judicial interpretation of the Act's discretionary

terms. Substantiveinconsistency is built into the legislatioif' (p322).

In short, there is no evidence to suggest that judicial interpretation is systematically biasedagainst tenants and homelesspeople. This is not to belie, of course,the pivotal nature of law in regulating class conflicts inherent in contemporary capitalist society. As

Hutchinson (1985) writes:

"The law is like a dog on a long leash. Although it will ultimately follow the lead of

its political master,it has considerablerange of movement.It can wanderfrom the

chosenpath and causeconsiderable damage and flustration" (p297).

And, while law in general operatesin favour of the leading capitalist class,many laws are also beneficialto other classesto ensureboth a healthyworkforce capableof productive work and the loyalty of that workforce (Pearce(1976)).

It shouldbe emphasisedat this point, of course,that while analysisof suchcases reveals the powersof the judiciary regardingthe determinationof individuals'rights, the literature reviewis largelysilent on the questionas to how caselaw might influenceor modify existing administrative practice. From a rights perspectivethis question is highly significant since failure to take accountof judicial decisionsmay lead to unlawful decisionsrecurring in practice. Yet, as Lovelandin one casestudy has concluded, consideration of caselaw was not integral to routine decision-makingwithin local authority housing administrative

59 practicesthat:

"... law remaineda curative rather than a preventive element of the decision-making

process" (p305).

To this issuethe thesiswill returnin the fieldwork. ii) Judicial Discretion

Analysis of discretionary power has not been a primary focus of traditional legal theory

(Galligan (1986)). Yet, as Galligan emphasises:

"a noticeablefeature of modem legal systemsis the extent to which officials, whether

they bejudicial or administrative,make decisions in the absenceof previouslyfixed,

relatively clear, and binding legal standards"(p I).

Indeed, it has been stated that, contrary to jurisprudential adherenceto fonnal legal rationality inherent in traditional Rule of Law theory, modem law illustrates a "major qualitativechange towards substantive rationality in preferenceto formal rationality",that is, the developmentof general legal policy guidelinesand parameterswithin which discretion is all pervasive (Cotterell (1992) p162). And, as Allott (1980) affirms: "Discretion is not a rare or exceptionalfeature of a legalsystem. It is intrinsicto everylaV' (p252).

Crucialto understandingthe conceptof "discretioW'is the fact thatjudicial discretionhas different uses (Galligan (1986)). In its first sense discretion occurs in the law-making functionitself whenthe judiciary interprets,settles and/or changes the law. In the contextof the court process,for example,judicial discretion arises when, after listening to and consideringthe views presentedby both partiesto the dispute,the judge (or sheriff) then announcesa reasoneddecision in open court. This decisionmust haveregard to statutory principles and relevant case law that may itself contain binding principlesdecided by a superiorcourt. It is alsoimportant to note that the courtscan take accountof Parliamentary

60 debates in determining parliamentary intent and interpreting statutory provisions where meaningis not clear (Pepper v Hart [199213 KTR (1032)).

In its secondsense- and the sensenow examined- judicial discretion is often legislatively sanctioned, that is, the decision-makeris not bound by precise rules but has considerablescope for choice in making the decision. An examplewould be judicial discretion in determining reasonablenessin respect of eviction actions. This type of discretion is of particular relevancein this thesis as failure to exercisesuch powers properly can have serious implications for tenants' rights. Discretion also occurs, of course, within local authority administration.An interestingview on discretionis providedby a housing practitioner. According to Evaskitas (1984), discretion is necessaryif allocations policies are to operate effectively. As Evaskitas notes: "... the fundamentalpoint so often missedis that no amountof rules and regulationscan or shoulddescribe or prescribeeverything that happens"(p2). For Eviskitasdiscretion can operateat the individual caselevel or at the policy level. Let us first considertwo theoristswho believethat the exerciseof judicial discretionmay be deleteriousto tenants'rights. It is emphasisedthat exerciseof discretion is a rights issue. For, althoughthe tenanthas no "nghf' to a specificoutcome since the decision-makerhas discretion, she/he does have a right to a properexercise of discretion. It would be disturbingif there was systematicbias in ýthe exerciseof judicial discretion,for example,a biastowards the interestsof landlords.

With specific referenceto housing casesinvolving repossessionactions, Cowan (1999) arguesthat judicial discretionmay be detrimentalto rights implementationbecause it is

"heavilyinfluenced by the particularjudge's perceptionof the morality of the actionsof both creditor and debtor in possessionproceedinge'(p483). In the case of the public rented housingsector, Cowan draws on researchto suggestthat court ordersfor repossessiontend

61 to be "rubber stamped" becausethe judiciary places general trust in the actions taken by

local authority landlords. Cowan then extrapolateson the extent of discretion by reference

to dissonancein judicial practice throughout the country in respect of decisions taken by

both individual judges and by different courts.

Mason et al (1995), in another critical study, suggestthat sheriffi often appearto ignore

their legal obligation to utilise discretionin consideringthe reasonablenessof eviction

actionsby landlords,a practicereputedly borne out by their failing to mentionor consider

reasonablenessas part of the court proceedingscoupled with failure to considermatters

pertinent to the decision concerningwhether it is reasonableto eViCt.48

Scrutiny of existing practice, however, sheds doubt on the applicability of these

perspectivesto judicial practice. With reference to the Mason et al (1995) position, for

example,sheriffs may well have consideredreasonableness issues prior to granting an

evictionorder eventhough this was not observablepublicly, particularly when facedwith a

landlord whom (as the relevantadministrative enforcement agency of housinglaw) they

believedwould haveacted in a lawful and proper fashionand tenantswere not presentto

defendrepossession actions. "

What, then, canbe saidin respectof discretionand rights implementation?Assessment

of the varyingtheoretical perspectives concerning judicial discretionconfirms that discretion

is an integralelement of thejudicial process.Indeed, as Schneider(1992) has noted:

"... howevermuch we acknowledgethe primacyof rules in a systemof law, we

cannotdeny the largeand essential service discretion performs" (p68).

48 (SeeCollins and O'Carroll (1997)for a detailedconsideration of the reasonablenesscriteria. ) In discussionwith the formercourt officer of oneof the predecessorcouncils now part of CouncilB, this officer cmphasisedthe trust elementby referenceto the sheriff s retort to the (courtofficer's) questionas to whetherhe hadtaken reasonableness into order:"You shouldn'thave brought the caseto court if it wasn't reasonable".implicit in this remarkis a possiblereason why sheriffsfail to mention reasonablenesspublicly. 49 The Masonet al (1995)study revealed that tenantswere present only in 15%of decreecraves. 62 With referenceto questionsconcerning rights implementation,contemporary judicial practice suggeststhat discretion may either inhibit or promote the interests of tenants, the outcomesof the decisionprocess dependent on individual sheriffs whose decisionswill themselvesbe mouldedby a rangeof factors,including personal values, knowledge of the legaland case matters under review and time availablefor considerationof suchmatters. iii) Judicial Expertise

A legal system constitutes a distinct system of communication (Allott (1980)). And, as with any other 'language', indetern-finacyof meaningcan result in ineffective implementation of principles. This is of particularrelevance from a rights perspectivesince the effective implementation of rights presupposesthat judges know the law. Indeed, with reference to how effectively law is transtnitted into society, Allott (1980) notes that a grave condition of anomia exists,that is, a lack of knowledgeconcerning the law, becauseof its complexity and indeterminatenature leadingAllott to affirm that "Unknown law is ineffectivelaw"

(p73). It is emphasisedin passingthat legal form may have a wider relevance,for instance, indeterminacyof legal meaningmight affect rights implementationat the administrative level if staff cannotunderstand legal provisions." This issuehas not been coveredby current research,however, and has been flagged as a topic suitablefor future research.This section now addressesthe questionof judicial expertiseand how this might impact upon rights' implementation.

In an early studyJennings (1935) noted that a principaldefect affecting decision-making in housingcases related to the fact that judgeswere often ignorantof the very issuesthat were the subjectto adjudication,this ignorancestemming from lack of awarenessof legal provisionsas opposedto ignorancedue to legal complexity. Giventhat manylawyers have

50 At an abstracttheoretical level legal form canbe distinguishedfrom legal content(Freeman (1994)). The former comprisesthe structureand principles of law, the latter the detailsof legal provisionsas contained within statutoryformat. 63 traditionally focussed on certain areaswhile ignoring others, difficulties for the judiciary in keeping abreast of legislative developmentsmight be anticipated. Indeed, in view of both the complexity and growth in housing related cases, it has been proposed to establish a specialist Housing Tribunal or Housing Court, although this proposal is not linked to the theoretical question of judicial knowledge and rights implementation (Mason et al (1995));

O'Carroll and McFadden (1999)).

But what evidence exists to indicate that ignorance of the law may result in inadequate decision-makingby the judiciary? This point is now assessedby reference to the tenants'

be if right of security of tenure and the legal provision that securetenants can only evicted the landlord not only satisfiesa relevant ground for eviction, but also satisfiesthe court that it is reasonableto grant an eviction order.

An early Scottish-basedstudy of this principle, for instance, suggestedthat there was

(1985))." This little concern in most courts with the issue of reasonableness(Adler et al situationapplied even in the Glasgowand Edinburgh Sheriff courts where, owing to greater tenantrepresentation, more adjournmentswere granted. And, in a later studyby Mason et al (1995),it was notedthat little progresshad been made in respectofjudicial assessmentof five Scotland reasonableness;indeed - from a surveyinvolving sheriff courtsthroughout -

"in only a small proportion of cases, however, was there a public indication of reasonablenessbeing considered"(pI 1). Major reasonscited by the authors for this includedlack of informationbeing provided to sheriffs,but - andmore critical:

"there appearedto be a generallack of knowledgeamongst sheriffs about manyof

the issuesthat are pertinentto rent arrears-casessuch as rent direct, housingbenefit

Adler ct al (1985)conclude by noting that whererights issueswere being addressedby the courtsie the sheriff taking reasonablenessinto accountin consideringeviction actions, this waslargely attributable to tenantpressure supported by socialworkers and others. The relevanceof tenantinvolvement in rights implementationis discussedin the following section. 64 overpaymentsand what would happento a tenant if a decreewas granted" (p 15).

Yet two points should be noted in respectof both studies,one from a historical perspective, the other methodological in nature Although the Adler study may have been pertinent in the early 1980's, judicial ignorance of recently introduced legislative changesis arguablyto be expected." Indeed,later caselaw indicatesthat many sheriffsnow take reasonablenessinto account in decision-making. In ClaclanannanDistrict Council v

Morgan, for instance,the sheriffheld that evictionwould havedraconian consequences for the adults and their young children (Collins & O'Carroll (1997))." While in Glasgow

District Council v Brown, it was held not to be reasonableto evict an innocentjoint tenant

(Watchman (1991))."

The methodological point concernsthe study carried out by Mason et al.(1995). In this study the authors suggestthat reasonablenesswas raised publicly by sheriffs in only a minority of casesin which an eviction decreewas being sought, that is, in thirteen cases(or

3%) from a total sampleof four hundredand sixty four cases." In addition,Mason et al

(1995)highlight that personalcircumstances of the tenantswere both raisedand discussedin only 24% of the total sample,indicating that the requirementto considerreasonableness was not being met by certain sheriffssince adjudication on mattersof reasonablenessrequires possessionby the latter of casefacts andtenant details. Despitethe undoubtedstrength of this argument,however, caution should be observedfor two reasons.First, and as Masonet al (1995) acknowledge,the fact that reasonablenessdoes not appearto be aired publicly is not synonymouswith non-considerationof reasonablenessby sheriffs. As the authors themselvesnote: "Sheriffscould indeedmaintain that they considerreasonableness without

52 The Tenants'Rights Etc (Scotland)Act 1980. 53 Unreported22 October1991, Alloa Sheriff Court; SheriffYounger 51 GlasgowDistrict Councilv Brown, 1988SCLR, 433. 51 Reasonablenesswas raised in thirty onecases (or 71/6),though, because of input by tenantsand/or their advisers. 65 actually discussingit" (p6). Indeed, it is also conceivablethat they could mull over case factsand personal tenant details without publicdiscussion.

Second,although the study embracesfive separatesheriff courts, that is 10% of the forty nine sheriff courts in existenceat the date of the study, the numberof sheriffsobserved participating in the judicial process (twenty in total) may not be representative of the judiciary as a whole." c) Remedies

From the perspective of rights implementation remedies are important since they may affectthe ability of personsto enforcetheir rightsin substantivelaw. It is axiomaticto add, though,that the existenceof remediesper se doesnot guaranteerights. Legal remediesmay be too costly for rights-bearersto use,or be largelyineffective in practiceas in the caseof seeking an order of specific implementto enforce a landlord's repairing obligations

(O'Carroll (2000A)). As O'Carroll (2000A)notes:

in "This is becauseof the requirementto specify with sufficient precision the writ the

in work that requires to be done. In some cases,especially relation to condensation

dampness,this may be practically impossible. It is believed that in the 2& century

implement there was no reported case of a successful application of specific

involving disrepair in housing" (p4l).

Similarly,remedies of a non-judicialnature may not be used for various reasons,for example,tenants declining to use local authority complaintssystems because they are regardedby themas being "costly in time, troubleand effort" (Cotterrell(1992) p25 1).

It is the purposeof this sectionto evaluatebriefly what remediesare availableto local authority tenants or other persons seekingredress where there is dissatisfactionwith

As advisedby the ScottishCourts Administrative services in October2000, this figure representsonly c 20% of the total numberof sheriffsin Scotlandin 1995ie onehundred and onesheriffs and six sheriff principals. The figure in 2000is onehundred and twentynine sheriffsand six sheriff principals. 66 decisions taken by local authorities in the field of housing law. Legal remedies will be

assessedfollowed by the evaluation of non-judicial remedies. For easeof clarification legal

remediesare examinedunder i) ordinarycivil remedies,ii) judicial review and iii) statutory

housingremedies.

a) Legal Remedies"

i) Ordingy Civil Remedies

By ordinary civil remediesis meant those available across the field of civil law. This

sectionsummarises the ordinary civil remediesavailable to tenantsseeking to have their

rights protected through legal action." Comments on their relevance to rights

implementationare also noted.

Damages

Tenantscan seek damages where the landlordis in breachof contractand the tenanthas

suffereda legally recognisedloss, for example,what the landlord has failed to carry out

necessaryrepairs and the tenant's possessionshave been damaged. However, damageswill

not necessarilybe available for all breachesof statutory duty by housing authorities. Thus,

there is no right to claim damagesfor breach of the duties under the homelessness

legislation."

Interdict

Interdict is a civil remedythat is usedto preventsomeone from doing something. It

cannotbe used,however, to force someoneto carry out a positiveact (Collins& O'Carroll

5, A plethora of other remedies,many of which are issue-specific,arc not discussedhere. Examples of issue specific legislation would be the Mental Health (Scotland) Act 1984 that deals with legal rights of people with mental health problems and the Telecommunications Act 1984, s43, that makes it unlawful to use the public telephone systemto send offensive messages.A person guilty of such an offence can be imprisoned for up to six months and/or fined to a maximum of L5,000 (the Criminal Justice and Public Order Act 1994 ' s92). 58 The Civil Evidence (Scotland) Act 1988 for in ýssl, abolished the requirement corroboration civil cases. Corroboration is evidencewhich confi; other evidenceof fact. 59 O'Rourke v Cainden LBC [199713 ALL ER 23, overruling Thornton v Kirklees Metropolitan Borough Council [1979] Q13626,CA 67 (1997)). It has limited uses in respect of the specific rights under considerationbut may be useful in stopping eviction decrees being used. As Mtchell (1995) notes, for instance, tenantshave a right to seekreduction of decree,and interdict against its use in the Court of

Sessionwhere the pursuer attempts to put an out-of-date decreeinto effect. In English law applicantsmay ask the court to grant interlocutory relief, by way of an "interim mandatory injunctionrequiring the council to secureaccommodation pending the final disposalof the action"" (Hoath (1989) p154). Interlocutory relief is also available in judicial review proceedings. Before the plaintiff can claim a mandatoryinterlocutory injunction, though, the courtshave decided that she/hemust establish a "strong primafacie case" for the action."

Specific Implement

Specific implement is a civil remedy applied by a court to order a party who is in breach of a contractualobligation to undertakeand perform that obligation." In contemporary practice this could be used to require the performanceof some physicalas opposedto pecuniary obligation, for example, the clearing of garden areas. With respect to tenants' rights, this action might be used to make landlordscarry out repair obligations(Dailly

(1993) p102). Yet the potential value of such a remedyto tenants has been largely undercut by the "almost insurmountableevidential burden that a pursuermust overcomebefore the court will exercise its discretion, and grant specific implement" (Dailly (1993) p102).

Difficulties involved in preparing a detailed and unambiguousrepair specificationare manifoldand, therefore,all too often the pursuer'scrave is an easytarget for a technically well-qualified defender. Indeed, and to re-iterate an earlier point made by O'Carroll

(2000A)), there is no exampleof a successfulcourt caseincluding specificimplement in

60 The Housing Act 1996, Part VII, s 188. In English law an injunction is a court order requiring someone either to carry out certain acts or refrain from doing certain acts (Hunter (1995)). 61 De Falco v Crawley Borough Council [ 19801QB 460. 62 Spcciflc implement is enforced by decreeadfaclum praestandum 68 respect of repairs for the whole of the twentieth century, thus making it impossibleto obtain in practice. ii) Judicial Review

Judicialreview tends to be usedwhen other remedies are not available.It is usedin the field of housing law, predominantly in homelessnesscases (Mullen et at (1996A)). Judicial

Review is a remedyin the Court of Sessionwhich allows actionsor decisionsof "inferior courts,tribunals and other public officesand authoritiee'to be reviewed(The Law Society

(1992) p43).'

The primaryfunction of judicial reviewis to ensurethat administrativebodies, including local authorities,act within their statutorypowers, do not abusetheir discretionand act in a procedurallyfair manner. It is emphasisedthat the role of the Court of Sessionin judicial review is not appellate in nature but supervisory. In short, the Court will not query the merits of a specificlocal authoritydecision; instead,it will considerwhether that decision satisfiesaccepted principles of administrativelaw. In accordancewith suchprinciples, local authoritiesmust ensure that decisionsfulfil the followingcriteria: firstly, they must act within their statutorypowers and where the power/dutyis discretionary,there must be real exercise of discretion. Secondly,all relevant statutory matters must be consideredby local authoritiesand irrelevantmatters correspondingly ignored. Thirdly, no decisionsshould be so unreasonablethat a reasonableauthority would havetaken it. Fourthly, local authorities shouldfollow fair procedures.Finally, under the HumanRights Act 1998,the victim of any public authority act that is incompatiblewith the Conventioncan challengethe authorityin court.' Only victims "will have standingto bring proceedingsby way of judicial review"

63 The focusin this sectionwill be on the Scottishcontext. The Englishjudicial reviewsystem has specific differences,for instance,the requirementto applyfor leavebefore an actioncan proceed, or the refusalof leavebecause of delaysie actionsmust normally be raisedwithin threemonths from when groundsfor the applicationfirst arise. The HumanRights Act 1998,V. 69 (Wadham and Mountfield (1999) p2).

Judicial review can, on occasion, be an important remedy for tenants, although two points should be emphasisedat this stage. Firstly, as a matter of law, the court may refuse to hear an applicationfor judicial review whereother remediesare available,but have not beenexercised, for example,where an applicantis entitledto raisean actionto haverights enforcedthrough the sheriffcourt. It, therefore,tends to be usedwhen no statutoryright of appeal or other establishedlegal remedy is available. Secondly, another type of remedy might in practice be more effective, for example, using internal complaints systems.

Examplesof wherejudicial review would be appropriatewould includeboth homelessness

65 decisions and house allocations decisions (Mmsworth (1994)). It is also meritorious insofar as it remainsa fairly quick procedurein Scotlandand retainsmuch flexibility, for example,by providing for interim relief (securing of housing in homelessnesscases). Finally, judicial review provides for a range of remediesto be made available, including a) interim interdicts, b) declarator, d) reduction, d) s45 Petitions Court of Session Act 1988) to enforce statutory duties and e) the right to damages(Robson & Poustie (1996)).

Judicial Review: Limitations

A numberof concernscan be raisedin respectof judicial review as a remedy. The first concernis that remediesavailable under judicial review are limited in scope. An order of declarator,for instance,does no more than declarethe petitioner's rights. It does not requirethe local authorityto substituteany particular decision for the decisiondeclared

65 An alternativeremedy in homelessnesssituations is coveredby the Local Government(Scotland) Act L973, s2l.1, wherethe Secretaryof Statecan initiate defaultproceedings against those local authorities wherethere is flagrantbreach of statutoryhomelessness duties (Himsworth (1994)). 70 unlawful. It is thus often combined with other remedies (eg a S45 Petition). 66

Secondly,damages tend to be low andare only availableif thereis a claimfor damagesin tenns of substantivelaw (Robson & Poustie (1996)).

Thirdly, judicial review can be obtained only in the Court of Sessionwhich, in view of the costsinvolved, can be prohibitive. For example,most petitionsinvolve private individuals with few 'class' actions having been raised (Mullen et al (1996A)). Given that the minimum costs of lodging the required Petition, prior to any substantive hearing, are likely to be substantialit is crucial that applicants can accesslegal aid funds to cover the costs of the action. With referenceto this latter point, though, recentresearch indicates a numberof difficulties. To qualify for legal aid, for example,the Legal Aid Board must be satisfied that a) there is a 'probabilis causalitigandi"', and b) it is reasonablegiven the particular circumstancesof the casethat legalaid shouldbe granted. In addition,legal aid is refusedif an applicant'sdisposable income and capitalexceed prescribed limits. And it would appear that many legal aid applicationsare indeedrefused. As Mullen et al (1996A) note:

"... less than one third of applications(29.7%) are grantedinitially, and less than

two-fifths (38.7%) are grantedonce successfulreviews are addediW' (Mullen et al

(1996A) p76).

The fourth concernrelating to the judicial review remedyinvolves accessibilityfor reasonsother than costs. Researchhas highlighted,for example,that solicitors often lack relevantknowledge of thejudicial reviewprocedures and, indeed, many solicitors never use these procedures. As one English study notes: "... it would appear that less than 6% of

66 An exampleof wherethis remedymight be usedwould be to seeka court ruling asto whethera personis a legally "qualifying person7'with entitlementto succeedto the securetenancy on the deathof the tenant and for the resolutionof which (unlike otherrights) no formal legal appealsystem exists, for instance, both landlord and/orthe putativetenant might seekan orderfor declaratorto seekthe court's opinion as to whetheror not a legal successionhas actually occcurred. 67 "A probablecause for beinga party to legal action". Legal Aid (Scotland)Act 1986.s14 (1). 71 private practitioners are involved in judicial review litigation in any one year" (Bridges et al

(1995) p53).

The fifth concern is that judicial review applications are normally raised only in limited areassuch as homelessness,immigration and licensingsince judicial review will not be appropriate where other legal remedies exist. Indeed, far from being a panacea,judicial review arguably has limited impact upon public administration, implementation of rights hinging crucially on local authority organisationalpolicies and practices, an issue noted by onewriter who statesthat:

"that if the goal of administrativelawyers is to ensurethat there is respect for legality

in all bureaucraticdecision-making, attention needsto be paid to the internal

processes and administrative culture of public authorities" (Mullen et al. 1996A)

p134).

Indeed,Halliday (2000)' in his studyof the influenceof judicial review on bureaucratic decision-making,suggests that judicial review is blind to the complexity of factors that mould actual decisionsin the workplace, decisionsthat are stampedby discretionary influencesas opposedto beingtaken simplyin an impartialrationalistic manner that derives from contemplationof legalprinciples. This defectthereby reduces its potentialto influence administrative processes. As Halliday (2000) argues, focus by judicial review on narrow

local areasof administrativeprocesses - coupledwith authority successesvis-i-vis judicial review decisions- may eitherresult in a dampeningof scrutinyby local authoritiesso that, rather than enhancinglocal authority compliancewith legal requirements,judicial review may "operate to reducethe extent to which administrativeagencies engage in this self- scrutiny" (Halliday(2000) p122). In short,focus onjudicial review by local authoritiescan

"A Paperderived from the writer's doctoralthesis published in 1999(Halliday (1999)). 72 divert them from considering how effectively rights are being implemented throughout servicedelivery. iii) Statuto!y Housing Remedies

There are certain statutory remediesspecifically designedfor the enforcementof housing rights by meansof an applicationto the sheriffcourt. It is notedthat other rights of appeal by securetenants aggrieved with their landlord'sadministrative procedures or decisionsin respect of right-to-buy applications are dealt with by the Lands Tribunal. These are not discussedsince these rights are not dealt with in the fieldwork. For example, certain rights provide for an appealto be raisedby the tenantwhen the landlord has taken an adverse decisionin respectof an applicationby the former to exerciseone of theserights. Thus,in the caseof a tenant formally applyingin writing to sublether/his tenancy or to carry,out home improvements,refusal by the landlord sets in motion the possibility of the tenant appealingto the sheriff court to enablethe sheriff to considerthe reasonsgiven by the landlordfor refusaland to determinewhether refusal is reasonable.Again, tenants may raise a court actionthrough summary cause procedures to preventa landlordvarying the termsof the tenancy against the tenant's wishes. Finally, tenants can also appealto the sheriff court by using statutory appealrights in respectof assignations,lodgers, improvements,and housesrepossessed by the landlordusing abandomnent procedures.

Yet scrutinyof legal provisionsreveals that landlordsare not obligedto advisetenants either of the actual right, or of their appealrights to the sheriff court in the caseof local authority refusals. Implementationof such rights, then, is likely to depend on the discretionary practices of particular local authorities, for instance, how adequate is the publicity affordedto such rights.'9 For, in the absenceof appropriateinfomation being

69 Other relevantfactors such as tenants' ability or willingnessto exercisespecific rights are examinedlater. 73 provided to tenants,the remedy is likely to be of limited practical import.

Council landlords wishing to evict securetenants can only do so by raising proceedings as a summarycause in the sheriff court. Prior to raising any action to recover possession,of course,the landlord must first have serveda Notice of Proceedings(The Housing (Scotland)

Act 1987 s47 (3) (b)). This Notice must be in the prescribedform, specify the ground(s) on which proceedingsfor recoveryare to be raised and set a date from which possession proceedingscan be raised. In orderto obtaindecree for eviction,the court mustbe satisfied that a) a ground for eviction exists and b) it is reasonableto grant an eviction.70 It should be highlightedthat, at this stage,tenants can offer a numberof defencesas follows: the action is technically incompetent because of a defective notice or summons; no ground for possessionis establishedeg rent arrearsdon't actually exist; or it is not reasonableto grant decreeeg welfareimplications for childrenif evictionis implemented.

In the eventof decreebeing granted, the legal remediesavailable to the tenant are to minute for recall, to appeal, or seek suspensionand interdict (Mitchell (1995)). The n-dnute for recall is an extremelyimportant remedythat can be appliedfor in respectof decree pronouncedat first callingstage. A minutecan be lodgedat any point precedingthe actual evictionoccurring and preventsthe evictionproceeding until further court order. The main benefitto the tenantis that the ýninutefor recall defersphysical ejection and providesthe tenantwith an opportunityto appearagain in court to attemptto convincethe sheriffthat an eviction order shouldnot be granted." This procedure,though, can only be used onceby

70 The Housing(Scotland) Act 1987 (a). Schedule3 lists Groundstwo " s48(2) the relevantgrounds. and sevenwere amended by the Crimeand Disorder Act 1998,s23 (1) (2) & (3). SeeCircular 27/1998for guidance. 71 With referenceto the otherremedies that are of morelimited use,the following pointsare noted. Appeals to the sheriff principal are possiblein a matterof law only againstany final decreewhether granted at first (or subsequent)callings or after proof (SummaryCause Rule 81). Reductionie quashingof decree, or suspensionof decreeand interdictagainst its useis possible.This procedurethat involvesraising actionthrough the Court of Sessionmight be usedin caseswhere landlords seek to implementout-of-date decrees(Nfitchell (1995)). 74 any one party to an action.

Failure on occasion by the judiciary to consider reasonablenesswhen deciding court

actions for eviction has already been highlighted as one influential factor that may adversely

affect rights implementation,. But another important factor is that many tenants do not

attendcourt to defendagainst eviction. In oneEnglish study, for instance,it was notedthat:

"many defendantsfail to participate in the court process with such persons being

"more than three times as likely to be placed under the threat of eviction as

comparedto householderswho activelyparticipated in the initial hearine' (Nixon et

al (1996) p47)."

While in the Scottish context similar findings have beenmade, tenants who defend

personally or are representedbeing far less likely to be evicted (Adler et al (1985); Mullen

et al (1996)). And failure to attend often results in casesbeing dealt with extremely quickly.

To refer to the English study again it was noted that most hearings "last only a few

minutes", a timescale that Nixon et al (1996) suggestsis inadequate to allow judges to

appraiseall the circumstancesof each case. In one extremesituation, for example,the

averagetime allocatedfor one hundredand four casesamounted to a mere "I minute 57

(Nixon (1996) largely by the secondsper case" et al. p23)13,a situation explicable extreme

pressuresof work that leadthe judiciary to expeditecase decisions. b) Non-JudicialRemedies

Non-judicial remediesare pertinentto issuesof implementationsince they provide an importantavenue for individualsseeking to vindicatetheir legal rights. This is of particular importanceas individualsmay not use legal remediesavailable, for example,because of

72 In English law, the districtjudge can,however, grant a suspendedpossession order. 73 Non-attcndanccby tenantsat court cannotsimply be attributedto thesefactors, of course,since other forcesshape the currentsituation. For instance,extreme pressures of work and a backlogof cases pressurisethe judiciary to expeditecase decisions. 75 ignorance of such remedies,or unwillingnessto use them. This point is discussedin more detail later (see pp 99-102).

It is interesting to recognise that, prior to the Legal Aid and Advice Act 1949

"Litigation, evenin essentialareas such as divorceand maintenance, landlord and tenant and industrialaccident, was quite simplybeyond the meansof the majority of the populatiorf'

(Harlow & Rawlings (1997) p391). In this context, then, alternative forms of accessing justice havebeen considered and subsequentlydeveloped. One suchmethod has involved the developmentof tribunalsthat hold jurisdiction to decidelegal disputes,for instance, employment disputes dealt with by Employment Tribunals. A plethora of types of tribunals exist and the Council of Tribunals in 1996 was responsiblefor over two thousand tribunals altogether,comprising almost eighty different categories (Harlow & Rawlings(1997)).

The rationaleunderpinning the developmentof tribunalswhich haveproliferated with the expansionof the Welfare Stateis that the tribunal systemoffers faster, cheaperand more accessiblejustice. In respectof housingrights generally,however, it shouldbe emphasised that no specialisthousing tribunal exists, hencethe omissionof tribunals in terms of assessmentof remedies.

But it is in the area of non-judicialremedies that there has been perhapsgreatest expansion,remedies that are established,generally speaking,to ensure that housing authoritiessatisfy good practicerequirements, but alsomeet standards of performanceoften espousedin both corporateand departmentaldocumentation that focuseson customercare and best value servicesof which providingcustomers with an opportunityto complainis a key component.Two maintypes of remedyof a non-judicialnature are briefly consideredin this section,namely complaints systems and the OmbudSMan.74Reference will then-be made

74 Notification by tenants of problems to staff or councillors is, of course,the most informal method of seeking remedy. 76 to the right-to-repair scheme where tenants' grievances are dealt with as complaints as opposedto some statutory remedy. i) Complaints Systems

Complaints systems are relevant to the question of rights implementation since they provide complainantswith the opportunity to have their 'case' investigated by officers not party to the original decision. These investigationsmay lead to the original decision being reversedand thereby protecting the legal rights of individuals.

Researchhas shown that, althougha dearthof complaintssystems existed in the 1980's in the public services,this hasbeen largely redressed in the 1990'swith "a surgeof interest in complaints systems throughout the public servicee' (Prior et al (1995) p136). Two reasons for this development can be noted: firstly, a response to "an increasingly competitive work place" to retain custom (Williams (1996) p7); Rigby (1998)), in addition to CentralGovernment pressure and exhortationsfrom the Local GovernmentOmbudsman.

Indeed,failure by local authoritiesto havean internalcomplaints procedure, or to rely on one "which is incompleteor inadequate",may itself constitute'maladministration7' (NCC

(1991) p I).

Secondly,principles of good practicethat entail that internal complaintsprocedures shouldbe designedto assurea person'slegal rights. As NCC (1991)point out:

"where the complaintinvolves a tenant, this includesboth the tenants' statutory

rights and contractual tenancyagreements" (p3).

It is also possible,of course,for authoritiesto specifyin the tenancyagreement that a tenant has 'a right to complaint', albeit this is not a statutory requirement(NCC (1991)).

The abovepoints, notwithstanding, research indicates that existingpractices may require reviewin the interestsof rightsimplementation. One study by NCC hasshown, for instance,

77 that tenants often lack detailed knowledge of complaints procedures, even where the latter exist; it is necessary,therefore, to publicisethe existenceof the complaintsprocedure "if it is to be effective" (NCC (1991) p7). And a recent study by Leabeater & Mulcahy (1996) has highlighted five major reasonswhy tenants may not complain: firstly, their view that complainingis actually pointless. Secondly,their social and class roots that inhibit complaints.Thirdly, fear of retaliation(eg from neighbours).Fourthly, personality reasons.

Finally, lack of relevant infonnation, including one's ability to judge the quality of service provided. Nor shouldwe forget Lipski's critiquethat bureaucracies,in order to ration and control services,adopt specialistcomplaints procedures that must be "specialised"as the bureaucracies"cannot afford to hear complaintsor vigorous dissentfrom decisionsat the sametime that other clientswith similar claimsbut less inclinationto speakout -are also being processed" (Lipski (1980) p 133). In brief, the complaints process can be seen, accordingto Lipski, as a control mechanismfor managing"dissent or non-compliance7'

(p133). Thesealleged shortcomings aside, though, complaints procedures can offer definite advantages;to both tenantsand landlordsalike. For example,complaints systems enable issuesof poliCYto be reviewedand, following review,may lead to an ameliorationin service provision, including securing of rights implementation. This point is of special importance since the Ombudsmanmust not trespassonto matters of policy in his investigations

(McCarthyet al (1992)). Giventhese advantages, then, pending legislative change that will requirelandlords to providetheir tenantswith informationabout their complaintsprocedure shouldbe welcomefrom a rightsperspective. " ii) Local OmbudsmanService

The Ombudsmanservice is important for rights implementationsince investigations

75 The Housing(Scotland) Act 2001 s 23 (6). 78 carried out by the Ombudsmanmight identify instanceswhere the legal rights of individuals

have been denied, for example, in the administrationof housing or homelessness

applications.

The Ombudsman service was created in 1974 (1975 in Scotland) and provides an

important avenuefor tenants seekingredress in situationswhere the local authority has been

guilty of some form of maladministration. It should be emphasised,though, that the

Ombudsmancannot challenge"the merits of a decisionbased on the proper exerciseof

discretionarypower" (Logie & Watchman(1990) p142). The Commissionerfor Local

Administration,ie the Ombudsmanis concerned,not simplywith what hasgone wrong,, but

also with those actions needed to "put matters right", the three principal categories of maladministrationidentified as being a) administrativeshortcomings such as breach of transferapplications, b) bad conductexemplified in failure by staff to respondtimeously to letters and c) the faulty exerciseof discretion,for instance,unfair allocations(Logie &

Watchman (1990).11

The importanceof the ombudsmanservice from a rights perspectiveis that it enables individualsto haverecourse to an independentbody to investigateand adjudicateupon the complaintsthat may includefailure by local authoritiesto observethe law. Thus, in one recent case involving Council B, (one of the authorities researchedin Chapter 4) maladministrationwas found becauseof the authority's excessivedelay in completionof enquiries,nine months insteadof the twenty eight day period to which council policy subscribes.In this case,the officer concernedhad sufficientevidence to satisfyherself that the applicationmet the "four hurdles",and the council's"subsequent inaction and reluctance to determinethe applicationappear to have relatedto "family history" which was of no

Statisticsconfirm that housingcases comprise a largeproportion of work carriedout by the Ombudsman. SeeLocal GovernmentOmbudsman (1996) and (1997)for details. 79 relevanceto the matter before them7'(Local Government OmbudsmanReport June, 2000).

In this casethe Ombudsmanrecommended 1800 compensationto make up for the time

spent in Bed & Breakfast by the applicant. It is emphasised,of course, that the Ombudsman

serviceis not designedas a mechanismfor legalredress, but in practicedoes provide redress

for legal shortcomings.It shouldbe notedin passingthat complaintswill generallynot be

investigatedwhere some remedy before a court or tribunalexists, although the Ombudsman

may investigatewhen he is satisfiedthat it is not reasonableto use an alternativeremedy.

(NCC (1991)).

It is importantto notethat severalnotable limitations exist in respectof the Ombudsman

service. The first potential difficulty - particularly from the perspective of individual

complainants- is that Ombudsmencannot enforce their findings,even in situationsof clear

maladministrationon the part of local authorities. In caseswhere the latter fail to act to

comply with the Ombudsman'srecommendations, the Ombudsmanmay issue a second

report which again local authorities are not legally obliged to implement, albeit they must

considerthe document.It shouldbe heeded,though, that local authoritiesthat decidenot to

act on the Ombudsman'sdecision can be requiredto publishthe Ombudsman'scase". It can

be countered,though, that this problemis not major as most local authoritiescomply with

the Ombudsman'sfindings. For instance,the Local GovernmentOmbudsman (1997) states

that:

"Local settlements- complaintswhich are resolvedvoluntarily by the authorities level (this) is indicative concerned- remainat a very satisfactory ... of the positive

attitudewhich authoritiesnow adoptand for whichthey shouldbe commended"(p7)

A secondproblem with current provision concernsthe limitations inherent in the

77 Amendmentsintroduced by ss27 and 29 of the Local Governmentand HousingAct 1989to the Local Government(Scotland) Act 1975. 80 Ombudsmansystem itself For example,the Ombudsmanis restricted in his investigationsto

those complaints alleging maladministration,a restriction which is itself problematic because

this presupposesthat tenantsare awarethat maladnýnistrationhas in fact occurred.As will

be arguedlater, though,awareness of staff maladministrationby tenantsis in all probability

rather patchy, particularly where there is a dearth of clear policies and proceduresin

operation." It should also be emphasisedthat, for complaints to be upheld,

maladministrationmust also result in the complainantsuffering some injustice as a direct

resultof the maladministration,a conceptthat alsoincludes "sense of outrage"or damageto

one's reputation (Logie & Watchman (1990)). Nor can complainsnormally be raised after a

periodof 12 monthshas expired after the relevantincident. Further,the Commissionerdoes

not require to publishif it is felt this would be againstthe public interest,or that of the

partiesconcerned. "

iii) Remedies:Right to Repair Scheme

The right-to-repair schemeprovides for no specific statutory housing remedies,although

local authoritiesare legallyrequired to furnishtenants with informationin writing aboutthe

scheme(including details of alternativecontractors) on an annualbasis. " - Circular 12/1994

doesspecify, however, that in the eventof disputes,tenants should initially haverecourse to the local authoritycomplaints system (if oneexists) and thereafter redress may be soughtvia the Local GovernmentOmbudsman, or by seekingjudicial review.81

Yet again,though, exercising these particular remedies hinges crucially on tenantsbeing

79 Maladministrationcan occurin manyways, including a lack of understandingand knowledgeof staff in. reachingdecisions (Local GovernmentOmbudsman (1997)). 79 S 28 (3A) of the Local Government(Scotland) Act 1975requires the Commissionerto namea member wherethe latter's conductconstitutes a breachof the NationalCode of Local GovernmentConduct. The ScottishLegal ServicesOmbudsman and Commissionerfor Local Administrationin ScotlandAct 1997 now allowsthe Ombudsmanto investigatethe complaintsof maladministrationin respectof both individual members and staff officers. 80 S11994/1046,rcg 13. 81 Circular 12/1994, rcg 3 1. 81 aware of their rights, that awarenessitself heavily dependent on discretionary practices of local authorities since the legislation imposes no obligation on local authorities to advise tenants of remediesavailable where the landlord fails to fulfil statutory repair obligations in respect of "qualifying repairs", particularly where repair services do not comply with statutory targets. Yet, as Cotterrell (1992) has argued, rights promotion by enforcement agenciesis likely to be rather lukewann where-this might exacerbatecurrent financial pressures. In addition, promotion of rights by local authorities will be even more unlikely in the absenceof pressureimposed by Government regulatory authorities such as the Scottish

Executive. Indeed,theoretical studies indicate that suchpressure often fails to be exerted because of inter-agency accommodation, that is, that regulatory authorities often tacitly accept organisational practices for a variety of reasons, including lack of resources to monitor effectively; inadequacy of existing sanctions and mutual support requirements

(Cotterrell (1992)).

And an interestingexample of relativelack of scrutinyis revealedby consideringthe implementationof the right-to-repairscheme. In accordancewith this scheme,the Scottish

Executive has the role of monitoring local authority practices." Yet discussionswith a senior Scottish Executive employee in October 2000 have confirmed that there has only beenone monitoringexercise in 1997that apparentlyresulted in a poor responsefrom local authorities.It was alsoconfirmed that lack of resourcesand work pressuresentailed that no further scrutinyof rightsimplementation issues could be undertaken,albeit returns suggested that the schememay have been implementedinadequately. " Consequently,effective implementationof this right is likely to hinge not simply on publicity and information

82 To ascertainnumbers and typesof repairscarried out by both usualand alternativecontractors, amount of compensationprovided and numbersand outcomesof appeals(Circular 12/1994,par 32). 83 It wasalso clarified that the monitoringwas undertaken by a relativelyjunior staff memberas opposedto a seniorofficer. It wasnotified that ScottishHomes will haveenhanced regulatory powers to coversuch matterswhen the pendinglegislative changes take cffect. 82 provided by landlords, but also on their commitment to a right that could be financially disadvantageousfor them to operate.

Summary

This sectionhas examinedbriefly the role of the judiciary in the implementationof statutory housingrights and the importanceof remediesfor protecting individuals' legal rights. In carryingout this examination,the judicial role was consideredto remaininfluential in affectingdecisions about rights implementation, of particularrelevance being the power of discretionexercised by individualjudges. Theoreticalperspectives that affinn that judicial discretion may be detrimental to rights implementationwere assessed.Evaluation of current judicial practicedoes not, however,lend credenceto this assertion.More accuratelyit was shown that judicial discretion may operate either for or against tenants' interests depending on the particular sheriff in question. Further, there is no evidencethat judicial decisions are systematicallybiased towards the interestsof local authoritylandlords.

Remedieswere evaluatedunder the categoriesof legal remediesand non-judicial remedies. Although legal remedieswere shownto be varied, it was indicatedthat their relevanceto the protectionof individuals'rights maybe of limited value,particularly where local authorities- as enforcementagencies of the state- fail to publicisethe existenceof such rights. Again failure by individualsto attend court was highlighted as another important elementthat can affect rights implementation.Limited or infrequentuse of legal remediesby tenantsmade it importantto evaluatethe effectivenessof non-judicialremedies as a means of guaranteeing rights implementation. Two main forms of remedy were assessed,namely local authority complaintsystems and the Ombudsmanservice. Despite theoreticalcriticism of the valueof theseremedies to individuals,both forms of remedywere

83 consideredto be pertinent to rights implementationas they can identify instanceswhere the legal rights of individuals have been denied and provide the opportunity for redress. The significant role of local authorities in rights implementation was highlighted further by referenceto the right to repair schemewhere the tenant's right of complaint hinges crucially on the extent and quality of landlord information and advice services.

Individuals' Capacity to Enforce their Rights

Cotterrell (1992) has noted that effective enforcementof law by state agenciesis heavily dependentupon citizens' "willingness to invoke law" (p 248). Yet this assertion concealsa number of important questions. What are the factors, for instance,that allow some people to enforce their rights but not others? Inadequatepublicity about rights, or lack of tenant training, for instance,seem obvious candidates since these would affect knowledgelevels.

But what of a person'smaterial ability to enforceher/his rights? Generalresearch studies have suggested, for instance, that rights enforcement is easier for those with economic power (Cotterrell (1992)). And what effect, if any, does poverty exert upon someone's willingnessto enforce their rights, even where that person possessesthe relevant legal knowledge? Again, are landlordssupportive of rights, or do they attemptto avoid their obligations?

To thesequestions, then, the thesisnow turns, the issuesassessed under the following headings:the effectsof poverty; publicity of rights; tenanttraining; accessto adviceand information, and tenant willingnessto exerciselegal rights. The effects of poverty upon rights implementationare consideredafter first clarifying pertinent council housing characteristics.

84 a) YheEffects of PovertV'

The political roots of council housing, particularly its role in appeasingworking class demandsto safeguardthe broader economic and political interests of the capitalist system has been emphasisedby many writers. (Young (1979); Englander (1983))." And Thane

(1982) has noted that the development of council housing was initially viewed as being a

(p207) political compromise - "a short term supplement to the private sector" -a perspectivethat was to changeas council housinggradually became the dominanttenure form in Scotland (Whitharn (1982)).

Yet, in labelling the council housing sector as being a provider of working class housing, it is critical to acknowledgethe following points. Firstly, council housing varies greatly in terms of quality, the quality largely determinedby the levels of subsidyavailable to local authoritiesto financehouse production, housing produced under the 1924 WheatleyAct subsidyarrangements, for instance,superior to the tenementdwellings produced in 1930's to dealwith slumclearance. " Indeed,Morris & Winn (1990)point out that the "... majority of counciltenants live in good qualityhousing with whichthey arehighly satisfied"(p23). "'

Secondly,despite the fact that largelevels of councilhouse sales have occurred - often involving the most desirablestock - it would be incorrect to categorisethe remaining council housing as being solely'a bastion of social exclusion. As Cowan (1999) clarifies:

"... Council housing, as with other tenures, is not uniformly anything - it is

temporally,spatially and qualitatively differentiated" (p490).

84 As per Townsend(1979) in his seminalstudy, poverty can only be definedobjectively and appliedwith consistencyby referenceto the conceptof relativedeprivation. 85 Power(1993) makes the interestingpoint that councilhousing actually developed first in Irelandbecause of political concernssurrounding social unrest. 96 The Housing(Financial Provisions) Act 1924. 87 A point that hasarguably been corroborated by the largenumber of tenantswho haveexercised their right-to-buy. By 1994,for instance,about 1.64 million hadpurchased their housesfrom sociallandlords in GreatBritain, mostof thesebeing ex-local authority tenants. 85 And research into projected levels of sales under the right-to-buy by Littlewood &

Munro (1998) suggeststhat sales are likely to continue, particularly if tenants' personal economic circumstanceswere to improve, many tenants still "keen to take advantageof the opportunity offered by the RTB" (Littlewood & Munro (1998) p662).

These points notwithstanding,it remains true that council housing is facing residualisationand statistical information of householdscurrently occupying council housing reveals it to be a tenure "where the lower-income groups are disproportionately represented." (Morris & Winn (1990)p4l), a trendthat hasbecome increasingly apparent as the more affluent tenantshave taken the opportunityto exercisetheir right-to-buy and thereby exit the public sector (Kempson (1996)). Again, a recent study indicates that of the thirteen million British householdscurrently living in poverty, most of theselive "in the hundredsof batteredcouncil housing estates where its peoplewere bom andwhere most of them spend their whole lives" (Davies (1998) p37)." A Scottish based recent research study, indeed, offers insight into the nature of this poverty (Scottish Poverty Infonnation

Unit (1999)). For example, in respect of housing tenure by employment status, households wherethe headis unemployed"are over-representedin the local authoritysector", with 61% of suchhouseholds located in the publicrented housing sector (Scottish Poverty Information

Unit (1999) p67). Again, statistics show that tenants in all tenures had lower incomes than owner occupiersand that, in 1994,three-quarters of public sectortenants had incomeson the bottom 40%(of households)." This hasresulted in the councilsector being seen:

"both locally andnationally as a welfarenet for thoseunwilling or unableto provide

88 Thereis no oneuniversally accepted definition of poverty.But povertyentails diminished life chancesand involvesdoing without essentialssuch as sufficientfood, adequate housing, heating and suitableclothing aswell asbeing excludedfrom servicesand participation in socialand community life (ScottishPoverty InformationUnit (1999)). 89 In 1974the relevantfigure for public sectortenants had been half. As onehousing officer hasapparently stated."It wasa goodthing to get a Councilflat in the 1970's. Now you haveto be desperate'(Murphy (1997)p6). 86 themselveswith adequateprivate sector housing (Merrett (1979) p214).

Turning now to address the question as to how poverty rnight affect rights implementation, two principal issuescan be identified. The first point is that poverty may disablesomeone from accessingjustice becauseshe/he cannot afford to use the judicial process.This point hasalready been noted in an earliersection.

The secondpoint, though, is perhapsmore profound and relatesto the fact that 'poverty can exert insidious pressuresthat impact negatively on individuals' willingness to exert their legal rights. Pilger (1998) makes the cogent point that poverty is a condition of the wealth of the ruling classand that contemporaryBritish society,as createdby Thatcherand her successors,is now stratified"with the top third privileged,the middlethird insecureand the bottom third poor" (p80). But it is Davies (1998) who forcibly explainshow poverty impacts on a person's ability to choose, on their ability to participate in community life. In

Davies' view, for example, poverty mangles the emotions of those who experience it, creating a deep-rooted hopelessnessthat emasculatestheir ability to defend any legal rights they may possess. And Johnson(1999) clarifies preciselywhat apathy entails in his damning critique of poverty":

"Let no-one forget that being poor meansbeing hungry, being cold, having

inadequateclothing, inadequate shelter. Thesedays, the poor may refuseto be cold

or inadequatelyclothed, but thatjust makesthe strugglefor resourcesmore difficult.

Beingpoor meansa struggleto get by that mustdominate every waking hour, unless

it becomesso overwhelmingthat it mustbe blottedout" (p44).

And the effectsof suchpenury, in Johnson'sview, areextremely dangerous: the creation of an underclassantagonistic to those in power, or possessingmaterial wealth; unstable

90 Johnson's study concernsthe often futile attempts to provide meaningftd education in areasof extreme deprivation. 87 family and social relationships where survival is paramount; and - perhaps one of the greatest dangers- the all consutning negativity that is bred by a life without prospect of betterment.

It shouldbe stressed,of course,that the aboveperspectives do not explicitly relateto rightstake-up in the field of housing. Nor, it would seem,has this subjectbeen researched in the Scottish context. It is suggested,though, that poverty is likely to be a major factor in explaining why rights often fail to be implementedeffectively, a point that has backing from other quarters, for instance, research into welfare benefits take-up that reveals a strong correlationbetween social class and failure to claim benefitswith the poorestpeople most adversely affected (Habets (1992)). And two principal reasons as to how poverty might affect rights enforcement should be emphasised. The first reason is that poverty breeds apathyand hopelessness, feelings that blunt concernabout rights issues.

The secondreason relatesto the indirect impact that poverty has on a person's ability to exerciseher/his rights, albeit that personstill retainsthese legal rights. Littlewood and

Munro (1998), for instance,note that many tenantswill be unableto "exercise' the right-to- buy becauseof low income'; while Stewart(1996) points out that inpecuniousnessalso inhibitsone's ability to exerciseother rights suchas carryingout improvements.Again, the polarisationeconomically of working classhouseholds and their compressioninto bleak housing estates,stigmatised as crime-riddenghettos, also has a knock-on effect on the exerciseof other fights." For example,the fight-to-subletcan be beneficialto thosetenants seekingto take temporaryemployment abroad, but who wish to return at somefuture stage.

But in the case of people who possessfew job skills and for whom access to work is

91 Oneof the 'hidden costs'of not beingable to exerciseone's rights because of economicreasons is perhapsrevealed in the paradoxicalsituation of the financialpressures now facing many mortgagers.As Elliott & Atkinson(1998) note, more than onemillion propertieswere stuck in 4negativeequity' in 1996. A hint of GermanSchadenfreude perhaps. 92 As Hurry (1921) cites: "The destructionof the poor is their poverty". (Proverbsx, 15). 88 extremely limited, to sublet one's home will not be practically possible. As Lister (undated) emphasises:

"... the millions living on socialsecurity benefits are in no sensea detachedand

isolated from the They just the but group cut off rest of society. are samepeople ...

with simplytoo little moneyto be ableto sharein the activitiesand possessionsof

everydaylife with the rest of the population" (p26). b) Publicity of Rights

Cotterrell (1992) points out that theoretical studieshave shown that poor and inarticulate people often lack knowledge and opportunity to complain against abuses. In Britain, for instance, national surveys reveal that consumerseither have no knowledge or rudimentary knowledge about their rights and are ignorant of agenciesthat can assistwith their problems

(Cranston (1979)). Many of these studiesdo not relate to housing, though, and as Cotterell

(1992) adds:

44 do .. manyenforcement agencies makeconsiderable effl orts to publicisethe rights andduties established by the law that they arerequired to enforce"(p 251).

This sectionaddresses publicity issues in the areaof housingand how suchpublicity may have affected rights implementation.

Crucial to the questionof an effectiverights strategyis whetherrights are publicised comprehensively,as well as publicisedin a format understandableto tenants (T?AS

(undated)). But as Kay et al (1986) note in respect of the introduction of the Housing Act

1980, Government publicity for most of the new rights, with the exception of the right-to- buy, was scant,limited essentiallyto a seriesof leafletsand two booklets." Indeed,as these authorsstate:

93 Kay ct al (1986).The bookletsreferred to are the 'Right to Buy' and 'The TenantsCharter. Low levels of publicity appliedsimilarly in Scotland,albeit a Circularwas issued which aimedonly to outlinethe main provisionsof the Tenants'Rights. Etc (Scotland)Act 1980. (SeeCircular 23/1980for details). 89 "... the Government has avoided any direct involvement in implementation; no

circular was issued either to explain the Government'sviews on the Act's

requirementsor to lay downguidelines for implementation"(Kay et al (1986)p235).

In additionto Governmentinformation, advice was publishedby other agencies,for example,Shelter's Guide to the Tenants' Rights Etc (Scotland) Act 1980. Such information was not availablefor massconsumption, however, and did not addressthe gap identifiedin respectof governmentsponsored information.

Given the dearth of documentationmaterial publicising rights, the role of local authorities is, therefore,instrumental if disseminationof rights informationto a wider public is to be achieved. Yet researchconducted by Goodlad (1986) indicatesthat local authority written documentation had failed in this respect. Using three key objectives as a checklist to ascertain if tenants were being given appropriate levels of the information concerning a) meeting housing need, b) using the home, and c) encouragingtenant participation, research highlighted that documentation was deficient on all three counts and important rights information such as security of tenure provision was not notified to tenantsby a number of authorities. In addition,much of the informationprovided by local authoritieswas poor both qualitatively and stylistically. As Goodlad (1986) emphasises:

"Quitea lot of materialfailed to mentionany legal rights tenants have, though this

was less commonwith handbooks.Others made only passingmention of the law

without sayingwhat the law means. Someauthorities produce written information

which was seriouslymisleading or legally inaccurate"(p55).

Before moving to the next sectionone questionthat might be raisedvis-A-vis the

Goodladstudy concernsthe relevanceof its findingsgiven its date of publication. For example, Clapham et al (1995) note that, based on a 1993 Organisation Survey, the vast

90 majority of local authorities (c96%) provide information to tenants on their tenancy rights and conditions, although lessthan half of the authorities surveyedhad handbooks. Yet such findings must be treated cautiously in the light of the following points. Firstly, the provision of information may not reflect clearly or accurately tenants' rights information. A mere statementthat rights informationis provided, therefore,elucidates little without actual detailed scrutiny of the documentationfrom a rights analyticalfocus. Indeed, Clapharnet al

(1995) expatiateon this by referenceto the fact that authorities produce tenancy agreements that contain information to tenants about rights. Tenancy agreements,though, have been heavilYcriticised on a numberof counts. Studiescarried out beforeLocal Governmentre- organisation, for example, reveal major defects from a rights information perspective

(Atherton (1983); Mullen et al (1996)); while the researchwork in this thesis illustrates how rights information is often provided in a skewed or distorted manner."' Thus,

Goodlad's comments regarding quality of information provided may still be accorded contemporaryrelevance.

The advent of the 1990's saw the publication by the Governmentof its Citizens' Charter that promisedan improvedTenants' Charter for local authoritytenants, one that would both strengthentenants' fights as well as ensuringbetter information to tenants on standardsand performancelevels achievedby local authorities." Hirnsworth (1994) alludesto the fact that these changeshave impacted on the law and practice of housing in Scotland. Yet, while concurring with Himsworth's view that legal changeshave indeed been enacted,for example,the requirementby local authoritiesto publishspecified management information to achievegreater public accountability,this doesnot equatewith the provisionof adequate

94 Chapters3 and4 focuson two local authorityCase Studies, both anonymisedbut drawnfrom the Scottish housingcontext. The focusconcerns policy andwork practicespost Local Governmentre-organisation. 95 Referencehere is to the subsequentlegal changescontained in the Leasehold.Reform Housing Urban and DevelopmentAct 1993. 91 infonnation about rights. This is now clarified by referenceto the following facts. Firstly, publishedlocal authority information about managementperformance focuses on issuessuch as rent loss due to voids, re-letting timescalesand arrears levels. It does not generally addressspecific tenancy rights issues. Secondly, although local authorities are required to advise their tenants in writing of specific rights on an annual basis', this information does not require to be detailed and may, in reality, be relatively inaccessible." Two main points, then, can be inferred from the above. The first point is that nationally publicised information about rights appearsto be lacking in detail with the exception of information concerningthe right-to-buy. The second point is that detailed understandingof the provision of rights information will depend on scrutiny of individual local authority practices; to cite

Loveland's (1995) point again, understanding rights implementation issues depends on analysisof issuescontextually. c) Tenant Training

Training constitutes a major issue of potential concern since this can affect levels of knowledge held by tenantsand, as a consequence,shape their ability to exercisetheir rights.

And the first point to stresshere is that, at CentralGovernment level, financial aid to provide training for tenants is only of recent origin, tenant training "not an area in which local authorities have a strong track record" (Kay et al (1986) p3l). Furbey et at (1996) highlight, for instance,that "direct financial support by the British Government for tenant training has been provided through Section 16 of the Housing and Planning Act of 1986"

(p259), investment that aims to promote tenant managementand active participation in estateregeneration. Section 16 funding has been accessed,for example,to allow tenantsto attendfurther educationalcourses such as the National Certificatein TenantParticipation

16 Right-to-buy,right-to-repair, right-to-compensation for improvements. For example, notification could be as brief as 'You have a right-to-buy' and might be inserted as part of other documentation. 92 first launched in 1992. At local levels, on the other hand, a number of agencies have provided tenant training though on a relatively modest scale. Examples of this training would be training carried out by agenciessuch as Tenant Participation Advisory Service

(TPAS) and Tenant Informative Service (TIS), for example,involving training on voluntary stock transfers and implications for tenants in respect of differencesin legal rights between assuredand secure tenancies. "

It is important to note here, though, that Governmenttenant training is shapedby Central

Government's own priority of developing vocationalism, in opposition to the more traditional "civic-republicantraditiorf' which focused on the developmentof each individual's potentialities as "a member of a political community" (Furbey et al (1996) p261). In line with the ethos of vocationalism,what matters is the notion of 'competence', that is, standardsto be achievedfor the successfulcompletion of a given task. Thus, for tenants receiving training to fulfil the right-to-managerequirements, competencies needed would include, inter alia, the ability to work as part of a team, exercising sound financial judgement, or displaying good planning and review skills. But at this stage at least two major criticismsof this type of training can be raised. Firstly, competence-basedtraining tends to neglect the questionof learningwithin context, "linking 'skills' and detailed

'knowledge' to a particular project and its individual roles grounded in the present", as opposedto a "collective social, econornicand political experiencegrounded in history"

(Furbey et al (1996) p264).

Secondly,competence-focused training tendsto ignore the significanceof theoretical knowledgein terms of both the direction and advancementof understandingas well as practice (Furbey et al (1996)). Thus, in the vocational framework, tenantswould tend to be

98 Other training providers include agenciessuch as PEP and organisationssuch as Scottish Homes, the latter empoweredto assist tenant training (Housing (Scotland) Act 1988, s2 (9)). 93 given practical training concerninghow to set up an allocations policy or what clauses to

incorporate into a tenancy agreement. Vocational training would be unlikely to provide

tenants with the legal knowledge as to why such provisions are required, far less an

understandingof the economicand political ethosthat underpinsthe actual legislation itself.

Following on from this point, it is perhapsa truism to note that tenants will only take

stepsto have their rights realisedin practice provided they are actually aware of such rights.

And it is alsoaxiomatic to addthat notjust tenants,but "most of us areunaware of the exact

extent of these rights and obligations" (Benson (1979) p45). In addition, the Hughes

Commission survey revealed that lack of information about legal services is "greatest

amongst those in the lower socio-economiccategoriee' (Paterson & Bates (1993) p257).

Given that council housing is increasinglybecoming the tenure of the disadvantaged'(Forrest

Murie (1988)), it seemsfair to concur with Paterson and Bates' contention that the

average tenant has little awareness of housing rights (Paterson & Bates (1993)).

Consequently,particularly as training is minimal, it is imperative that appropriate levels of

adviceand infonnationexist to actualisepublic awareness." But are suchadvice services readilyavailable? Let us now addressthe issueof accessingadvice. d) Accessto Adviceand Information

Access to advice and information is a prerequisitefor effective implementationof rights

(CIOH (1999)). And it is acknowledgedthat adviceconcerning tenants rights can indeed be obtainedfrom a numberof sources.In the Scottishcontext, for instance,frontline providers of housing information are varied, although inter-agency partnership can create systemic working relationships in practice."' The main types of information providers are: local

99 The question of how local authorities seekto enhancethis awarenesswill be discussedin the final part of this Chapter that assessesa rang of organisational themesthat are relevant to the analysis of rights implementation. 100 Homepoint, the housing information and advice unit of Scottish Homes, provides a co-ordinating and support role for organisations;involved in the provision of advice. 94 authoritylandlords and landlordsof other tenures; professionalssuch as solicitors; the voluntary sector agenciessuch as Citizens' Advice Bureaux (CABX), Shelter and specialist client groups such as Age Concern; and statutory services such as social work and planning."' (Scottish Homes (1998)). It is also worth emphasisingthat a limited number of specialistlegal rights advicecentres exist suchas the Castlemilk& GovanLaw Centreand the Legal Services Agency and the Dumbarton Ethnic Minorities Law Centre. These agenciesprovide general and specialistlegal information. As Goodlad and Williams (1994) note:

"Information and support servicesvary from providing relatively simple facts, such

as the eligibility of an applicant for Council housing to, for example, providing

practical assistanceand representationin connectionwith a court case" (p30).

A variety of possible sources of advice, therefore, exist and - under the auspicesof

Homepoint - advice serviceshave developedthroughout the 1990's, of particular note being the exPansionof the ShelterHousing Law Servicenetworks.

Let us now, then, considercurrent developmentsby referenceto professionallegal advice,advice sought from local authoritiesand advice sources generally. i) ProfessionalLegal Advice

With respectto accessinglegal advice, particularly where court actionis contemplated,a major barriercan be financialin nature,namely whether the personseeking advice qualifies for legalaid. Legalaid, it shouldbe stressed,covers both adviceand representation. There arealso other limitations in the availabilityof legalaid. Legalaid mayonly be grantedby the

ScottishLegal Aid Board wherean applicanthas a) a probabiliscausa litigandi and b) it is

101 Examples of advice given by social work would include rights information concerning children's welfare ft The Children (Scotland) Act 1995); while planning departmentstaff might advise clients on relevant planning applications. 95 deemedreasonable to grant aid."' Potential weaknessesin the scheme,however, relate to the relatively inadequateprofessional remuneration paid to solicitors, as well as the lengthy bureaucratic process involved in processing legal aid application. Indeed, it has been suggestedthat the scheme"provides a curative' service, offering legal assistanceto pursue legal rights", (whereas) it should be devoting more time and money to the provision of a cpreventive' service, educating groups in the community about law and legal rights?

(Paterson& Bates (1993) p283). It should also be noted that public accessto legal advice is much dependant on what area of work is involved, particularly what is the most remunerativefor solicitors (Benson (1979)). As Mullen et al (1996A) point out, in their study of judicial review, the quality of advice provided by solicitors can vary, with knowledge being gathered on a piecemealbasis, particularly "those substantiveareas of law which are outwith solicitors' traditional areasof work, for example,homelessness" (p I 11).

Given these barriers, then, for many people accessinglegal advice in areassuch as housing tends to be restricted to specialist legal agenciesor other organisationssuch as CABx or

Shelter where servicesare offered free of charge."' ii) Advice Sought from Local Authorities

Widdowson and Harland (1998) note that the main topics of advice sought from local authorities concern allocations and homelessness,tenants' rights, repairs, arrears and housing benefit.` Telephoneenquiries are increasingas a major meansof accessingadvice, although visiting offices remains an important contact method. The study shows that high

102This point notwithstanding,legal aid hasbeen substantially cut in recentyears. The Law Societynow estimatesthat "justiceis beyondthe meansof about12 million people". SeeThe Observer-January 26, 1997. 103The RoyalCommission advocates three principal ways of improvinglegal informationto the public: corporateadvertising and official publicity;referral lists of appropriatesolicitors for particularproblems; andadvertising by individualsolicitor firms (SeeBenson (1979)). 104This is basedon an empiricalstudy involving (othertenures aside) a total of sixty nine local authority tenants(28% of original mailingsinvolving two hundredand eighty tenants). 96 proportions of tenants are either unemployed(28%), or retired (33%), and that household incomes of enquirers are often low (59% of tenants earning less that 15,000 pa). Thus, financial considerationsthat can negatively impact on the implementation of certain rights, particularly the right-to-buy, should be distinguished from actions taken by tenants to identify what their particular rights may be.

According to Widdowson and Harland (1998), the principal gaps in provision of accessinginformation do not stem from non-existenceof information. Rather, gaps derive from institutional deficienciessuch as lack of clarity regarding appropriate staff contacts, a dearthof sharedinformation between staff of both the sameas well as other departments, and inadequate knowledge of other advice and information services. Bureaucratic deficiencieswere also unearthedby the survey surnmarisedas follows: inadequatelytrained staff both in terms of knowledge and inter-personalskills; poorly developedinformation and publicity services; withholding of information (by staff); and adherenceto rules and the application of bureaucraticprocesses without applying discretion." iii) GeneralAdvice Sources

In a recent study, Goodlad and Rosengard(1998) have commentedon generalbarriers to accessinginformation. The first barrier results from the tendency by local authorities to employ housing officers on a generic basis rather than employ dedicatedadvice workers, a practice that raisesdifficulties in terms of the nature and quality such officers can realistically provide given their demandingwork duties.

A secondbarrier concernsthe diversity of advice agenciescurrently operatingin

Scotland,many of which are specialistin nature, and the requirementto harnessthis diversity to producecloser inter-agencyworking relationshipsin practice,thus avoiding

103Widdowson and Harland(1998) also used a "mysteryshopper" technique to identify further organisationalissues of potcritialconcern. One of their majorfindings was that personnelresources are oftenextremely stretched to meetdemands for information. 97 duplication of servicesand enhancingcomplementary roles.

A third barrier relates to the lack of advice services,both generally and particularly:

generally, in respect of accessibilityof location and, particularly, as regards the I-Eghlands

andBorders where advice services are either scant or do not exist."

The last barrier noted concerns that of discrimination. Local authorities are legally required to ensure that services,including advice services,are provided free from discrimination and encourageequality of opportunity for everyonewithin the community."

Goodlad and Rosengard(1998) point out, for example,that premisesmay be restricted both in terms of location and openinghours, priorities that may not meet needsof certain disabled people, or women with families."' Again, Widdowson and Harland (1998) highlight that there is a lack of "accessiblegood quality advice in appropriatelanguages" (p65), a practice clearly at odds with current legislative and good practice requirements.""

Finally, a recent study by Burrows (2000)) has identified that, in respect of current money advice services in Scotland that can impact on tenants' rights issues in respect of repossessionactions for rent arrears, several major difficulties exist. Despite increasing demandfor suchservices, for example,research has shown that currentprovision has been cut due to inadequatefinance provision. And a second issue that requires prioritisation if moneyadvice services are to be effectiveconcerns that of training. As per the other studies discussed,training for advisorsinvolved in the provision of money advice servicesis

106Goodlad and Rosengard(1998) indeed conclude that: "... the evidenceof this reportssuggests that housingadvice services in Scotlandare poorly developed in Local Government.In the voluntarysector provisionis patchyin geographicalcoverage, in qualityand in breadthand depth of housingexpertise" (p27). 107 Underthe Housing(Scotland) Act 2001,s106 (1), local authoritiesmust exercise their functionsin a mannerwhich encouragesequal opportunities and in particularthe observanceof equalopportunity requirements."Equal opportunities"is definedas per the ScotlandAct 1998,Part II, Schedule5. 108 Seethe SexDiscrimination Act 1975(as amended by the SexDiscrimination Act 1986); andthe Disabilily DiscriminationAct 1995for the legalprovisions relating to theseissues. 109 Seethe RaceRelations Act 1976and the Codeof Practicenoted in the Bibliography. (CRE(1991)). This legislationhas now beenamended by the RaceRelations (Amendment) Act 2000. 98 minimal, a deficiency that is largely attributable to inadequateallocation of funds towards training. e) Tenant Willingness

The thesis has already touched upon specific factors that may affect the likelihood of personsenforcing their rights, for example,penury, or actual ignoranceof one's legal rights.

In respect of the latter point, for instance,Dickson (1989) notes, how tenants in rent arrears who complete an application form for a time to pay order and fail to attend the court hearing believing that offering to pay will protect them from eviction, often find to their consternationthat decreefor paymentand eviction has been granted in absentia."' It is also possible that tenants may choose not to pursue their legal rights and it is worth examining the factors that might discouragethem. This section examines,then, three elementsthat can impact negatively on a tenants' willingness to exercise their legal rights. These three elementsare the formalism of legal process,bureaucracy and ideology. i) Formalism of Legal Process

In responseto the question posedby Adler at al (1985) regarding (lack of) attendanceby tenantsto defencerent arrearsactions in manycourts, "some courts simplydidn't know or suggestedthat many different reasonsmust contribute" (p37). Reasonssuggested included lack of publicity and tenant ignoranceof the court's role. It was even suggestedin one court that

"it took a while for the "punters" to discoverthe possiblevalue of appearance"

(Adler et al (1985) p37).

Recentstudies have indicated other barriers that canaffect a tenant'sdecision to exercise her/hislegal rights. The first majorbarrier stems from the natureof court proceduresthat

110The Debtors (Scotland) Act 1987 requires landlords raising a variable summonsaction under summary causeprocedures to serve on the debtor, prior to the court hearing, an application for a time to pay order. Dickson's comment relates primarily to Glasgow sheriff court. 99 can be extremely daunting for many tenants not au fait with court practices. Mason et al

(1995) point out, for example, various factors that act as potential impediments: the

atmosphere in court is often "more like a criminal trial than civil proceedings" (p15);

acoustics can be extremely poor preventing tenants from keeping abreast of proceedings;

tenants having to face lengthy delays, "sometimes hours, until their case comes up" (p15)

importance and - of major given the limited financial meansof many tenants- tenants often

had to travel "significant distances"to attend the court hearing. In an English study, Nixon

et al (1996) stress that the unduly formalistic nature of court actions further exacerbates

matters,court protocolsin termsof both dressand speech, ie legaleseas well as accentand

mode of speech,that permeatecourt proceedingsare often foreign to many tenants who, as

a result, lack sufficient confidenceto participate actively in court actions. For this reason

Nixon et al (1996) have suggestedthat public court hearings,for example,those that involve

rent arrearsor anti-socialbehaviour actions should be held in private as a method of

overcoming the negativeimpacts of court formality.

ii) Bureaucra

A secondimportant elementthat may determinewhether tenantsutilise existing remedies

relatesto the nature of current landlord:tenant relationships. Widdowsonand Harland

(1998), for example, have commentedon bureaucraticfailings in respect of housing advice

provision often markedby frosty inter-personalrelationships. And this point has been

expoundedin detailby Lipski (1980)). Lipski arguesthat public sectorservices (or street- level bureaucracies)are actuallyindifferent to the loss of clients or client dissatisfaction, partially on accountof the overwhelmingnature of demand(for thoseservices) relative to

supply,but also becausemost clientsare poor without other meansof obtainingessential

services. Yet Lipski's point is not a moralistic one. For employeesare themselvesalienated

100 within ill-definedand pressurisedwork processesthat lead them to routiniseand facilitate such practices, for instance, by withholding of infonnation to depress increasingly heavy servicedemands.

And it is within this process of limitation of service demandsthat one can grasp why tenants may wish to minimise contact with landlord officials. According to Lipski (1980), bureaucratic control involves the imposition of psychological costs on clients. Lengthy waiting prior to receiving servicesand detailed inquiries into people's private lives are two examplesoffered, both of which belie any respectof individualclients. Facedwith such bureaucratic control mechanisms,then, and power relationshipsthat create client dependencyon thosewho use public services(tenants, clients of social work etc), clients often choose to minimise contact with the officials of bureaucracy."' Despite Lipski's important contributionto theory by diverting attentionto bureaucraticprocesses and the effects of such processeson policy implementationit is also important to note the following points. Firstly, as Hudson (1997) points out:

"In Britain no attempt to apply Lipski's theory explicitly has been made7'(p396).

And, asHudson (1997) adds:

"Academically,the pressingneed is to find out more about how street level

bureaucratsare actuallybehaving. Getting at the truth would be problematic,but

must be confronted. If we wish to understandpolicy implementation,we must

understandthe streetlevel bureaucrat" (p402).

Secondly,Scottish based studies of housingmanagement have indicated a high level of tenant satisfactionwith landlordservice provision and further empiricalresearch would be requiredto assesshow Lipski's findingsmight correlatewith this position (Claphamet al

111 As Lipski alsopoints out, this dependencyreveals itself in client angerand frustration.

101 (1995)). Lipski's study provides an interesting retort, however, to the effect that such tenantevaluations by themselvesare of little valuesince - ignorantof what qualityof service or treatmentthey (tenants)should actually receive - satisfactionsurveys tend to produce subjectiveperspectives of dubiouscritical value in termsof actualbureaucratic performance. iv) Ideology

Ideology is the fourth important elementthat affects personalchoice in respect of rights implementation.Thus, tenantsmay choose- financialand other criteria aside- not to purchasetheir homesfor political reasonsor choosenot to participate- againbecause of political beliefs - in group action to changethe current landlord (eg stock transfer initiatives). One example of the latter is clearly seen in the politically radicalised minority tenants'movement opposed to the majorstock transfer proposal involving the GlasgowCity

12 Council housing stock.'

Summary

This sectionhas examined the rangeof factorsthat affectthe capacityof individualsto enforcetheir rights. Thesefactors were shownto be extremelyvaried, involving elements of a structural, organisational and individual nature. At a structural level, for example, the effectsof poverty(or socialexclusion) on individualsblunts their motivationto exercisetheir legal rights. Organisationalfactors, on the other hand,were seento be of significance,of particularimport beingthe role of the local authorityas regardsthe publicity of rights, the provision of training and the establishmentof comprehensiveadvice and information networks. Analysisof existinglocal authority practicesindicated concern on all counts, however, and that current serviceprovision was often poorly developed. This is clearly

112See Beck & Woolfson(1994) for further details. 102 detrimental to effective rights implementationfrom the perspective of individuals. Specific

factorswere identifiedthat affect the likelihood of individualsenforcing their rights. For

example,the formalismof the court processwas viewed as a potentialbarrier for individuals

seeking to accessjustice. Again, though, the significant role of local authorities in the implementationprocess was highlightedby referenceto currentfailings inherent within local authoritybureaucracy that canbe detrimentalto effectiverights implementation.

Avoidance

It is a familiarobservation that thoseaffected by regulatorylegislation often activelyseek to avoid its impact. In the contextof tenants'rights, it is well known that landlordshave successfully undermined policy behind legislation to protect tenants' interests through a variety of avoidancetechniques. Such techniques would havebeen less successful had they been sanctionedby the courts which raisesagain the issue of judicial interpretation,of statutory rights. However, critical analysisof relevant literature indicates a marked contrast between the private and public housing sectors. Evaluation of techniques employed by privatesector landlords has been well documented(as noted below). Assessmentof housing managementstudies suggests, however, that public sectorlandlord avoidance techniques -a conceptthat can imply deliberateaction - hasbeen the subjectof little research. Indeed, failure by local authorities to meet their obligations fully has tended to be viewed sympatheticallyby researchers,such failures traditionally explained in terms of inadequate finance (Hogwood and Gunn (1990)), or a senseof indignation at having obligations imposed(Gallagher (1982)). As will be discussedshortly, this may be attributableto an assumptiondrawn by researchersthat local authoritiesare - at least where situationsare favourable- activepromoters of rights. An alternativetheoretical perspective that landlord

103 avoidance techniques also occur in the public housing sector because of internal organisational deficiencies will be discussed later after local authority organisational. practices are analysed. This will focus on the failure by local authorities to implement service delivery holistically, an inadequacythat will be discussedin the context of systems organisationaltheory. First, though, evasiontechniques used in the private housing'sector areexamined.

Evasion techniquesused by private sector landlords to circumvent the provisions of the

Rent Acts have been extremely varied historically."' The Francis Report (1971) cites, for instance,the utilisation of deferred purchaseagreement schemes by landlords where paymentsby tenantswere regarded(by the former) as purchaseinstalments instead of rental payments. Such payments, though, were often fixed at such high levels that default was common, whereupon "all paymentswould be treated as paymenttowards occupancy of the property" (Robson (1994) p56). And, a second major technique employed by landlords cited by Francis,concerns the landlordpractice in London of letting roomsthat have little and cheapfurniture, while describingthe letting asTumished" on the Rent Book.

As Rent Act 1974 this loophole' 14 landlords a result of the which closed , private sector strove to develop other avoidance techniques. Attempting to treat people sharing accommodationas not havingtenancy status has been one method,for instance,a particular problemhistorically in the absenceof written tenancyagreements and if tenancychanges were frequent(Robson (1994)). And, in the Scottishcontext, two of the principalmethods adoptedin the 1970'sinvolved the grantingof "holiday" or "bed andbreakfasf' lets that are

113The Holland Committee(1965) indicate, in their reporton RentAct evasionby landlordsin Londonthat it is impossibleto verify accuratelythe numbersof actualevasions. 114 That is, by incorporatingfurnished private sector accommodation within Rent Act protection. 104 115 both unprotected by current law. Thus, for example, Shelter's celebrated picture of

"holiday flat" in "that famous world playground of the rich - Costa del Partick", a tenementalarea that can never be a holiday area (Shelter (1984) ppl7/19). With respect to the natureof boardprovided the decisionin Gavinv Lindsaysuggested that: ' 16

16 not only was it necessaryfor thereto be substancein the provisionof boardbut

that there shouldbe a service. Providingvouchers for cafesor boxesof groceries

was not sufficient" (Robson and Halliday (1998) p28).

In this caseSheriff Kearneyproposed that both elementswere requiredto satisfy a proper bed and breakfastarrangement. Failure to satisfythese elementsmeant that the

"agreement was no more than a tenancy covered by the Rent Act" (Robson and Hafliday

(1998) p44). In Otter v Norman, the House of Lords appearsnot to have had the opportunity to c,onsider the issuesraised in Gavin v Lindsay when determining that a single mealis sufficient.

Yet greatest controversy has perhaps arisen from landlords' utilisation of licence agreementsinstead of tenancies,particularly after the Rent Act changesof 1974 (Coyle 117 (1985)). This is now examinedby referenceto both the situation in England and Scotland.

This particularavoidance technique has long beenrecognised as problematic. Megarry

(1967), for instance,points out that where grantor and grantee agreethat a licence should be created:

"it would be wrong for the court to extractfrom the granteran estateor interestin

landin the teethof the intentionof the parties"(p60).

115In Holiday Flat Co v Kuczera,1978 SLT (Sh Ct) 47, it wasaccepted that a continentalbreakfast would satisfyboard requirements. While in OttervNorman [1988]2 ALL ER 897, itwas held that a single mealsufficed. 116Gavin v Lindsay,1987 SLT (Sh Ct) 12. 117 In England,a licenceconstitutes a contractto occupypremises as opposed to a grant of heritage. Licenceeshave no right of exclusivepossession. 105 Shamagreements, on the other hand,could result in serioussocial consequencesand courts,in Megarry's,view shouldscrutinise documents that seekto avoid the Rent Acts."'

What, then, havebeen the judicial attitudestowards licences? In Sommav Hazelhurst,for instance,the Court of Appeal upheld the landlady's claim that a couple allowed to use one room in a flat (with a provisofor a third party to be introducedinto the flat at any time) did not constitutea tenancybut simplya licenceto occupy."' Again, in Aldrington Garagesv

Fielder, two separate agreementsentered into between a couple and the landlords were interpreted as being wholly separateby the court, one consideredto be simply a licence even though the couple subsequentlyrented the flat together."' Indeed,certain authorshave arguedthat, in the 1970'slandlords were encouragedby the courtsto evadethe Rent Acts

(Widdison (1982)). Coyle (1985), for example,suggests that judges "seemedto feel that if, by clever drafting, an agreementcould be placed outside the Acts, then so be it" (p 15).

Yet it is important to note that judicial attitudesregarding licenses appear to have changed.In the caseof Streetv Mounffibrd,for instance,the Houseof Lords overturnedthe landlord's successfulappeal to the Court of Appeal which had ruled that the agreementwas a licencewas in force despiteMrs Mountfordhaving exclusive possession and the useof the word "rent" in the agreementas well as a rent book being provided."' In reachingits decisionin the House of Lords, Lord Templemanjudged that if an occupierpossesses an agreementwith the three"badges" of a tenancythen that occupierhas tenancy status with

118The term 'sham' hasbeen defined by the Courtof Appealas follows; "documentsexecuted... to give to third partiesor to the court the appearanceof creatingbetween the partieslegal rights and obligations differentfrom the actuallegal rights and obligations,if any,which the partiesintend to create(1967) 29B at 802" (Madge(1998)). 119Somma v Hazelhurst[ 1978]1 WLR 1014. 120AIdringtonGarages v Fielder (1979)37 P& CR 461. 121Street vMountrord(1985) 274 EG-821,HL. The word "rcnf' wasdescribed by the Court simply asbeing "verbal shorthand". 106 full Rent Act protection."' Thus, whereasa licenseeis someonemerely permitted to occupy prernises,a tenancy is created whenever there is exclusive possession,an obligation to pay rent (monetary or in kind), and a term (Madge (1998)).

With respect to casesafter Street, the House of Lords decided in Antoniades v Villiers that the individualagreements enabling the landlordto introducehimself or anotherparty into the flat was nothingother than a shamand that a tenancynot a licensewas in force.123

Yet Megarry's concernshave certainly not been put to rest."' For despite the above ruling, there continue to be casesin which the licence is successfulas a device for taking agreementsoutside the scope of Rent Act protection. In Brooker Settled Estates v Ayers, for instance, on appeal by the landlord to the Court of Appeal, a new trial was ordered to enablea detailedassessment of all the facts to determine"whether or not the occupant enjoyed exclusive possession"(Madge (1998) pIl). ` Again, inAG Securities v Vaughan, decided along with AnIoniades v Villiers, it was held by the House of Lords that a licence existedin the caseof sharingbetween strangers who paid differentrents but did not control re-lets nor had responsibilitiesfor costs of defaultingoccupiers. "' It appears,then, that mattersare not yet settledin Englishcourts, indeed that thereexists a "degreeof confusion amongstthe judiciary about the natureof licensesand leasee'(Robson (1994)). And, as

Madge(1988) points out, the principalinference to be drawnfrom this (and other cases)is

122The Court also indicatedits disapprovalof the decisiontaken in Sommav Hazelhurst(1978) 246 EG 311, CA, in which the Court of Appealhad heldtwo occupantswere licensees instead of tenants.This disapprovalwas based on the Court'sfailure to askwhether the occupantswere lodgers or tenantsand that it did not draw the correctconclusion from the fact that Mr Hazelhurstand Mr Savellienjoyed exclusivepossession (Madge (1998)). 1'3Antonlades v Villiers [198813WLR 1205. 124A studycarried out amongstLceds students in 1982,for instance,revealed that 60% of tenancy agreementswere in the form of licenses(Gay (1986)). Thereis no preciseinformation, however, regardinghow manyprivate sector tenants actually receive bona fide tenancyagreements. Finnis (1977) suggests,though, that manylandlords do not supplyrent booksand that historically"enormous numbers of multi-occupicddwellings" were not registered(p 111). 125Brooker Settled Estates Ltd v Ayers (1987)19 IHLR 246; (1987)54 P&CR; (1987),IEGLR 50, CA. 126AG Securitiesv Vaughan[ 19901,1AC 417. 107 that "different judges come to different conclusione' (p 16).

It is important to emphasisethat Scots law in respect of licensesis different. As Robson

(1994) notes, the licence issuehas not been discussedin depth by the Scottish courts, although in Scottish Residential Estates Development Co Lid v Henderson, it was held by the court that the intentionof the partiesto the agreementwas the critical elementin the determinationof whethera tenancyor merelyan occupancyagreement existed. " Indeed, case law indicates strongly that using a licence to evade the Rent Acts in Scotland through the creation of occupancyagreements is likely to be given short shrift in Scottish courts. In

Brador Properties v British TelecommunicationsPLC, for instance, the Court of Session supported the position that the concept of a leasein Scotland is wider than in England and that contracts which are called licencesin England are more properly treated as leasesunder

Scotslaw. "'

Although evasionof the Rent Acts has been a perennialtheme of private sector landlordism,it shouldnot be forgottenthat landlordpractices vary considerably.Housing associationlandlords using the SFHA Model TenancyAgreement endeavourto enhancethe contractualrights of assuredtenants in orderto achievegreater parity with rights enjoyedby securetenants. Historically, though, private landlords have often resistedboth a) the developmentand b) the implementationof tenants' rights, landlordsoften supportedby influential political figures such as Sir Keith Josephwho, critical of the Rent Acts, has stated: "... safeguardsmust not be such as to blunt the profit motive" (Cited in Shelter

(1984) p3). Otherways in which landlordpractices have undermined tenants' rights include

127Scottish Residential Estates Development Co Ltd v Henderson1991 SLT 490. 128Brador Propertiesv British TelecommunicationsPLC, 1992SLT 490 at p495. However,it hasmore recentlybeen recognised that certaintypes of hostelaccommodation may be occupiedunder a contract which is not a lease. SeeConway v GlasgowCity Council 1999SUR 1058& 1999SUR 248. In addressingthis issue,the Housing(Scotland) Act 2001empowers Scottish Nlinisters to makeregulations to enhancehostel dwellers' rights. 108 harassmentand unlawful eviction.

Eviction actions must meet specific legal criteria if they are to be valid." Yet research suggests that nine per cent, that is over 144,000 tenants, may have experienced either harassmentor unlawful eviction (Jew (1994)). Reasonsfor carrying out unlawful eviction vary, although it appearsthat illegal evictions often occur because"many small landlords out of ignorance, are under the impressionthat sincethe 1988 Housing Act they can get rid

(1990)). 130 of their tenants as they please" (Burrows and Hunter Other motives for eviction exist,however, of a lesssalutary nature. For example,the desireby landlordsto evict Rent

Act protected tenancieswith the purpose of charging new tenants higher rents, as well as granting them less security (eg Short AssuredTenancy lets) (Spicker (1988)).

Another factor that has arguablyimpacted negatively on tenants'rights in the private rentedsector has been lack ofjudicial enforcementof relevantstatutory penalties in casesof harassmentor unlawful eviction. Jew (1994) has pointed out, for instance,that fines levied by courts haveoften beenlow, a practicethat fails to act as a deterrenceto illegal landlord practices. However, civil damagesalso provide a financial disincentiveto unlawful eviction and more recentcases such as Haniff v Robinsonindicate that, as a result of the legislative changesin 1988,high levelsof damagesare now beingreceived by tenants,particularly in the Englishcontext. "' In Haniff the sumof 128,000was awardedwhere a landlordevicted the tenantforcibly prior to the datein the court order(Robson (1994)).

129That is, service of appropriate notices and summonsfollowed by court action at which one or more specific grounds for eviction must be satisfied. 130Factors that give rise to illegal evictions are themselvesmanifold and include rent arrears (often stemming from delayed Housing Bencfit payments),dcsire to rc-let or sell, tenants; behaviour etc (Jew (1994)). Harassmentand unlawful action casesthat tend to come to the attention of local authorities involve small to medium sized landlords (Marsh et al (2000)). 131Haniffv Robinson [19931,1 ALL ER 185. 109 Summary

Attemptsby privatesector landlords to circumventthe provisionsof the Rent Acts have varied historically ranging from deferred purchase agreement schemesto the granting of

'holiday' or 'bed and breakfast'lets. Of more recent interest has been the attempt by landlordsto uselicence agreements instead of tenancies,of particularconcern from a rights perspectivegiven that licenseeshave no security of tenure. It has been highlighted, though, that using a licence to evade the Rent Acts in Scotland is likely to be given short shrift in

Scottishcourts. This sectionalso touched upon the questionof neglectof rights by public sectorlandlords and it was notedthat this hasbeen the subjectof little research,an omission that may stem from an assumptiondrawn by researchersthat local authoritiesare active providers of rights. This issueis re-assessedat a later stage.

Organisations

The remainderof this Chapter considersthe role of local authorities in the implementationof housing rights. A number of commentshave already been made suggestingthat what local authoritiesdo affectsthe implementationof citizens' rights, for example,whether or not they give informationabout rights, or provideadvice about rights, or providetraining. Theseare clearlyaspects of organisationalbehaviour and remindus of the point madeat the outset: the factors affectingimplementation of housingrights are overlappingand interacting What is emphasisedat this point of the Chapteris how the way local authoritiesfunction as complete organisations affects the implementationof rights.

Prior to examinationof the role of local authorities,it is importantto clarify how andwhy local authoritiesshould be seenas havinga major responsibilityfor the implementationof rights in housing law.

110 Local authorities play a significant role in the rights implementation process. Despite increasing legislative control by Central Government in recent years over local authority activities, for instance,the implementationof housing rights remains the clear duty of local authorities. In short, they are the main enforcementagency of housing law possessingbroad discretionarypowers in respectof both interpretation and application of legal provisions.

Yet the question remainsas to why we should expect local authorities to be promoters of rights? It has alreadybeen highlighted, for example,that support for a rights culture was not integral to the historical ideological precepts of housing management. And Gallagher

(1982), in her study of housing managementand its ideological leanings,argues that housing managers- with the introduction of securetenants' rights in 1980 - felt resentment"at the impositionof more work on alreadyhard-pressed departments" (p148), that administrative work concerning legal rights is unjustified since "housing managementis liberal and fair"

(p148). And this point can be developedto add that the promotion of rights may even lead to conflict betweenlandlord and tenantas in the caseof evictionactions where protecting tenants' rights by showing reasonableness,in addition to establishingthe ground for eviction,may prove costly in termsof time andeffort requiredby the landlord.

But recent political and ideological developmentssuggest that local authorities should havea prominentrole in activelYpromoting rights implementation. These developments are now elucidatedby referenceto public sectorservice providers, the Citizens' and Tenants'

Charters,and the developmentof citizenshipideals. i) Public Sector ServiceProviders

Individual citizensand communitiesin generaloften hold high expectationsconcerning council serviceprovision, a servicethat traditionalsocial democratic thought considers"is an effectiveway of extendingcitizenship rights throughmeeting the objectivesof equality,

III freedom, democracy and community" (Clapham (1989) p25). This is particularly relevant

"in areasof predominantly local authority housing ownership where virtually all public and social activity is influencedby council ownershipof facilities and provision of services"

(Kerley (1994) p16). Indeed, Prior et al (1995) argue that local authorities have two primary functions. Firstly, to assistindividuals to meet their "basic needsas healthyand autonomous members of society" (Prior et al (1995) p 150). Secondly, to - ensure that servicesattain appropriate quality standards. This includes the provision of comprehensive informationthat arguablyshould include information about rights so that people"can judge for themselvesthe qualityon offer andtake appropriateactioW' (Prior et at (1995)p 151). ii) Citizens and Tenants' Charters

Adherenceto the principlesof the Citizens'and Tenants'Charters is a commonfeature of councils' strategicpolicy documentation. And, in line with such Charters,councils undertaketo promote specificideals. In relation to the Citizens' Charter, for example, public authoritiesare expectedto give effectto six principlesof public service,including the provisionof comprehensiveand accurateinformation about the natureand extentof public service (Page (1999))."' Clearly implicit in this principle, then, is the commitment to rights promotion. iii) Citizenship

Citizenshipprinciples have already been discussed in the contextof CentralGovernment political strategy(see pp 43-44). This strategy,as we haveseen, seeks to harnessresources availableto meetcommunity interests in generaland the interestsof individualsin particular.

Yet local authorities,too, havean importantrole in developingcitizenship due to the fact that:

132The six principlesbeing standards, information and openness,choice and consultation,courtesy and helpfulness,putting thingsright andvalue for money. 112 "Local government occupies a specialplace in the relationship between citizens and

government" (Prior et al (1995) p 146).

This specialrole is simply that local authorities are the agenciesthrough which "many of the rightsand obligations of citizenshipare exercised" (Prior et al (1995)p146).

From the perspectiveof rights implementation,this role of local authorities is extremely important. For example,local authorities- as agentsof Central Government- must develop local citizenship strategies. As emphasisedby Prior et al (1995), an important strand of such strategiesinvolves "continually making explicit the rightsand entitlements of citizensand the proceduresfor ensuringthey are upheld, and supportingcitizens in seekingto obtain entitlements". An important factor in this approachis the developmentof Tenants' Charters as discussedabove.

Despite professed commitmentsto rights, however, the literature review has indicated that a variety of organisational factors may inhibit effective implementation of rights.

Externalinfluences on organisationshave been considered as beinghighly relevantto rights implementation,for instance,the severefiscal controls now imposedby CentralGovernment upon local authorities (Monies (1996)). More specifically,the type of organisational culture adopted by local authorities has been held as being of particular relevanceto rights implementation,organisational practices heavily dependent on culturalvalues (Caimcross et al (1997)). With referenceto work practicesand workload pressures,on the other hand,

Lipski (1980) has argued that such factors greatly inhibit effective rights implementation.

Finally, both staff attitudesand lack of training have been emphasisedas being of major significance, Loveland (1995) noting in particular the low levels of housing staff who are professionallyqualified and suggestingthat, as a result, "most authoritiescould not have satisfiedthe demandsof a rights-basedapproach to management." (p25).

113 The rest of Chapter 2 now turns to examine these organisational concerns under the following headings,although their close inter-relationship is stressed: external constraints; organisationalculture and structure; work methodsand practicesand personnelmatters.

This examinationwill identify specific organisationalmatters of greatest concern for detailed evaluation in the empirical study undertakenin Chapters3 and 4. a) External Constraints

Organisationsare inevitablyshaped by their environment. Some of these external influenceshave already been considered, including the political andideological climate. This sectionconsiders in more detail aspectsof CentralGovernment policy and decisionswhich affect local authorities, and the importance of regulatory and professional bodies. Such external influencesmay impinge on local authority housing and affect the implementation of tenants' rights. In carrying out this examination,three issuesare considered: legislative and fiscal changes; the development of partnerships and the influence of other agencies and organisations. i) Legislativeand Fiscal Changes

By 1978local authoritiesowned more than a third of all housingstock in Englandand more than half of the Scottishhousing stock (Letwin (1992)). Yet, as highlightedalready, legislativechanges primarily the right-to-buyhave led to radicalrestructuring of the current local authority public housingsector. The sectoris now reduceddramatically in size, and providing housingincreasingly for the poorer sectionsof the working class."' In tandem with legislative change,fiscal housing policies have shifted from "bricks and mortar" subsidiesto individual rebatesor allowances(Housing Benefit) (Malpassand Warburton

133Politically determined, of course,by the politics of the 'New Right' that seeksto unbridle restrictions on market economicsby general programmesof deregulation and privatisation (Gamble (1994)). Laffin (1989) p 171)) notes how this transition from the public service being regarded as model employers, setting an example to the private sector, towards becoming market place employers occurred during the Thatcher years, the public sector now regarded as a "haven of inefficient labour market practices". 114 (1997); Goodlad (1999)). In 1978/79, housing support grants made up a significant 39% of the housing revenue account (SLGIU (1996))."' But grant support to local authorities has fallen dramatically throughout the 1990's with most Scottish councils now receiving little grant and 37% of councils receiving no grant. Figures I and 2 illustrate the housing support grant figures for Scottish councils and also Councils A and B, the two councils in which empiricalwork was carriedout.

It is within this context of a decliningand financiallydepleted public rented housing sectorthat links with the questionof rights implementationcan be drawn. Hogwood and

Gunn (1990) point out, for example, that "expenditure restrictions may starve a statutory programme of adequateresources" (p 199), citing as an examplethe Control of Pollution Act

1974 which, coinciding with public sector cutbacks, meant local authorities lacked sufficient fundsto appointthe additionalstaff neededto implementthe Act. Again, with referenceto the contemporary housing climate, expenditure cuts pursued by senior management operating within the New Public Managementcontext critically affect the resourcesthat can be used to implementrights, particularly those rights that may have adversefinancial implications for local authorities such as the right-to-repair, or the statutory duties originally imposed on local authorities as a result of the Housing fflomeless Persons) Act 1977, particularlyin areasof great housingneed. Nor shouldit be forgottenthat the reductionof housingstock actually servesto divert existingresources from the managementof public rentedhousing stock to the managementof the housingstock soldunder the right-to-buy,ie in the provision of common factoring or property managementservices to the new owner

The statutoryhousing account created by the Housing(Scotland) Act 1935. It shouldbe notedthat controlshave strengthened to prohibit subsidisationof the housingrevenue account from the ratefund contribution(Monies (1996); SLGIU (1995)). 115 0,

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117 occupiers (IoH (1986A)). "' As Sim (1995) points out, local authorities have had "to introduce factoring systemsfor owner-occupierswhere there are issues of common repair and maintenance"(p93). "'

Yet it would be simplistic to apportion the blame for non-implementationof specific rights to fiscal measuresalone. Kay et al (1986) have argued, for example, that lack of funding does not by itself justify the poor implementation of secure tenants' rights, especially as

"some authoritiesdid managethe implementationreasonably well and proved that the majority could have done so too" (p40), albeit comprehensivepublicity and encouragement of rights take-up was not the nonn (Caimcross et al (1989)). In their view Central

Government's lack of pressure on local authorities to implement rights is of greater relevance- right-to-buy excepted- in explaining the poor performance of councils. Again,

Adler et al (1985) have arguedthat certain rights receiveless support in view of the fact they are regarded as being potentially antagonistictoward local authority interests (eg security of tenure).But it is perhapsby referenceto the housingprofession as modifiedby fiscal and legislativechanges that further insight can be gainedregarding factors that might inhibit rights implementation. ii) The Development of Partnerships

An integral element of'Central Government strategy, in fact central to current housing privatisation, is the developmentof New Housing Partnerships(NHP's) that prioritise "well- foundedproposals for transferpartnerships which promotecommunity empowerment and

An invalid argument often cited by councillors in support of reducing staff levels is that fewer staff are required as a result of house sales. This is simply a non sequiteur. For it is the better quality housing stock that tends to be sold, the stock that requires less managementand maintenance. Increased administrativa, dcmands placed on housing staff by remaining and potential tenants createsthe paradox that greater numbers of staff may be required to meet organisational objectives. Many authorities, it should be noted, had not yet provided factoring systemsby the early nineteen nineties, but the majority were in the processof establishing them. 118 living in private finance"137(CIOH (1999) p2). The NBP programme is also part of the

Government strategy to tackle social exclusion, an initiative to tackle low -levels of investmentin the worst councilareas drawing on privatesector funds to facilitateinvestment needs(Goodlad (1999)).

But will such proposals impact favourably on the development of tenants' rights?

Goodlad (1999), for example,suggests that no viable alternativeto this approach exists that can deliver "empowerment, quality and security" (p14), although it is acknowledged that local authorities may retain housing managementcontrol where quality services currently exist. Indeed, coupled with the legislative opportunities containedin the Housing (Scotland)

Act 2001 to expand statutory rights, NHPs represent a golden chance to legislate to eradicatemany of Scotland'shousing problems. "'

Yet criticismsof the NHP programmehave been raised. Firstly, it hasbeen argued that funding provided by the Government under the NBP is insufficient to meet investment requirements, a fact inherent in the nature of the NHP programme that relies on private sector funding (CIOH (1999)). But this itself may prove problematic from the perspective of rights developmentif private financiersare reluctantto invest in the developmentof housing in which tenants possessthe full range of rights - and possibly more - to those currentlyenjoyed by securetenants. The right-to-buywith discountundoubtedly falls into this category,although changes to the cost floor rules go someway towards assuaging privateinvestment concerns. "' Thesechanges entail that a housecannot be sold below the price calculated as per the statutory provisions, including the price not falling below a

137A total of L278 n-dllionhas been earmarked for Scottishhousing partnerships by the Governmentfor the period 1999/2000(CIOH (1999)). 138For example,the new statutoryright to participation(the Housing (Scotland) Act 2001,03-06). 139Particularly as the highestreturns to the mortgageeoccur in the earlyyears of the loan whereinterest chargesare "front-loaded". 119 statutorily defined "cost floor" in the caseof recent housing140; the sale price and discount payableis calculated by referenceto historic costs involving the previous time period, but rolling forward. The restriction of maximum discount, in respect of Scottish secure tenancies,to a level of 115,000 will also soften such concerns.141

Secondly, the NHP programme has been sponsored as an important mechanismfor developing effective community and tenant participation networks, a catalyst as it were for creating community empowermentthus assistingin the processof rights development. Yet community development programmeshave in many situations led to conflict between the state ie Local Government and community activists. Alcock et al (1996), for example, argue that anti-poverty and empowermentstrategies are often rooted in bureaucratic interests and, as such, are primarily rhetorical in nature. According to Alcock et al (1996), empowerment and effective community participation will be largely dependenton proper monitoring and evaluation systemsbeing in place; while Goodlad (1999) concurs by reference to the need to have all social and public landlords monitored by an independentagency.

The flnal criticism is that espousedby Corry et al (1997) who - while acknowledgingthe long history of private-publicsector partnership (PPP's) - arguethat currentmodels focus on privatesector involvement to a far greaterextent, a reliancethat may in the longerterm haveserious adverse effects on the qualityof servicedelivery, for example,the tendencyfor organisationsto reducestandards may creepin becauseof financialmotivations. "' Yet, as the authors also note, pfivatisation of service delivery may be beneficial if the NHP

140The generaldetermination of saleprice was previously made in accordancewith SDD Circular No 32/1988,the Housing(Scotland) Act 1987(Right-to-Buy) (Cost Floor) Determination1988. This has now beenamended by the Housing(Right-to-Buy) (Cost Floor) (Scotland)Order 1999,Sl 1999No 611 (05) that extendedthe periodover which relevantcosts are countedtowards calculation of the costfloor from five to ten years. Circular 8/1999provides detailed guidance on the newprovisions. 141The Housing(Scotland) Act 2001,s49 (2) (c). 142Corry et al (1997)also cmphasise the needto haveindependent regulation of PPPpractices to inhibit suchdevelopments. 120 programmeresults in a "good shakeup of the service concerned" (p57), fossilisation of local authority housing services arguably a key component in explaining ineffective service delivery."' iii) OtherAgencies and Organisations

Brief mentionis madein this sectionof the role of other agenciesthat interactwith local authoritiesand, through that interaction,may affect rights implementation. This covers bodies of a statutory and non-statutory nature.

One importantexternal control over local authority activitiesis that exercisedby the

AccountsCommission, the body responsiblefor auditingall local authority accounts. The powers of the Accounts Commissionwere extendedby the Local Government Act 1988 to include studying local authority activities to ensure better value for money is being achieved."' Current legislative provisions, for example, require councils to "make proper arrangementsfor securing economy, efficiency and effectiveness""'; this duty has been consideredunnecessary, however, given that auditors already have this duty under previous legislation."' As the terminology suggests,the main focal point is that of achieving cost efficiencywithin the new marketand business orientated structure to which local authorities must conform. Thus,auditors pay little attentionto rightsissues and their chief concernlies with monitoringfinancial matters, for example,levels and trendsvis-A-vis rent arrears. Of particular importancein this respectis that there is no standardor regular monitoring in respectof most tenantsrights. "' Thus,the influenceof currentaudit controlsin respectof

143The sameauthors also note,somewhat tonguc-in-check, that shouldprivate sector agencies themselves become'fossiliscd' in future,the "Blair governmentmay need to do the movebetween the public and privatesectors all over again- in reverse'(p57). 144The Local Government(Scotland) Act 1973lays down the functionsof the AccountsComn-tission in Scotland. 145The Local Government(Scotland) Act-W%, s 170. 146The Local GovernmentAct 1988,s35. 147This point is examinedagain later. 121 rights promotion is likely to be minimal.

A number of other agenciesand organisationsexist that can influence service delivery in respect of housing managementactivities. Examples of such agencies are the Chartered

Institute of Housing, Cosla, other professionalbodies, Shelter and the whole gamut of the voluntary sector agenciesthat proliferate in the Scottish housing context."' Methods of influence vary but include political canvassing,consultation regarding pending and existing legislation, the publication of statistical and good practice reports.

Yet influences exerted by the above hinge crucially on local authority receptivenessto their views, as well as their relative standing politically. Nor do reports issued by these bodies as regards good housing managementpractice have mandatory status. Thus, the comprehensiveChartered Institute of Housing StandardsManual which teems with good practice suggestions emphasisingthe need for local authorities to promote and develop tenants' rights is merely informative in nature."' (IoH (1993)). It is interesting to note in passing, though, that Scottish Homes is to be replaced by a new agency, "Community

Scotland" in late 2001, its remit including the future regulation of the activities of local authority and social housing landlords. b) Organisaflotial Culture atid Structure

ideological in Central Government strategies- fiscal, legislative and character- shapeto in a large extent the organisational cultures and structures that local authorities adopt practice. It is important, therefore, to assesshow local authorities have developed their

having organisational structures to take account of the interests of individuals perceived as

The list is too extensive to cover but could include Scottish Council for Single Homeless,Women's Aid, and (for housing associations)SFHA, TIS, T? AS. 149Cosla, the local authorities' representativebody, focuseslittle on housing or tenants' rights issues. interestingly, its recently published national Code of Conduct (Cosla (1999)) for Local Government employeesis advisory only and omits possessionof knowledge in its list of sevenkey principles of public life, knowledge in fact essential if tenants' rights are to be met. 122 citizenshipstatus under New Labour (Gyford (1991))."1

In assessingthe question as to how organisational culture might impact on the implementationof tenants' rights, the following methodology is adopted. Firstly, a definition of cultureis provided.Secondly, a numberof culturalorganisational typologies derived from contemporary managementtheory are identified. Finally, the relevance of typology to the questionof effectiverights implementation is examined. i) Culture Defined

Organisational.culture has beendefined at its simplestlevel as "how things are done

highlighted by around here" (Mullins (1996) p7l. 1). More specifically though - and a point is Handy (1993) in his seminal work on organisational theory - is that there no precise definitionof culture. Indeed,culture is somethingto be perceived,reflected in a variety of ways, including organisationalgoals and objectives,behavioural patterns of employees,and qualities such as customer care espousedby specific organisationsin policy and procedural documentation,as well as protocols regulating interactions between organisational. employeesand customers.And crucialto mattersof culture,of course,is the organisational structureadopted as the vehicleof implementationof key objectives. ii) Organisational jypologies

A variety of differentorganisational cultural typologies have been proposed, typologies that enshrinethe valuesystems inherent to particularorganisations. Thus, Handy (1993) has describedfour key culturesthat symboliseorganisational activities, the rule-boundculture most pertinent to public sector bureaucracieswhere administrativeduties are controlled througha web of proceduralguidelines, the other culturesbeing the personfocused culture, the task centredculture, and the powerbased culture. Handyacknowledges, of course,that

150Local authorityorganisational structures vary considerablyand housingservices can standalone or be mergedwith other departmentssuch as socialwork. Indeed,such mergers became increasingly common after local authorityre-organisation in April 1996. 123 suchdescriptions are impressionisticonly and cannotreflect the complexitiesand nuances associatedwith actual organisations. Applying Handy's model to a housing context, then, this would be reflected, say, in allocations being made precisely as the rules determine and allow for no discretion, a position of coursethat may conflict with principlesof judicial review.

Lawton and Rose(1994), on the other hand,specify that public sector culture can be definedby using a four-fold typology, namelythat organisationscan reflect cultures stamped by political, administrative, legal, or market force aspects,or may contain elements of all thesecultures. The latter is pertinentin the caseof housingwhere culture is mouldedby a variety of influences,for example,housing administrative practices such as housesales that have been determined by legal provisions rooted in political strategy to privatise public sectorhousing.

A third modelto explainorganisational culture, and one that is housingspecific, has been espousedby Caimcross et al (1997) who argue that the organisational culture of housing authoritiestypifies an ethosthat can be classifiedas beingeither traditionalist, consumerist or citizenshipfocused. "' In the first model,for instance,the emphasisis on the interestsof the bureaucracy,with informationcontrolled in an authoritarianfashion; this is Handy'srule culture. In the secondmodel, on the other hand,emphasis is on individualtenants, with focusbeing on issuessuch as that of tenantchoice; in politicalterms this would be reflective of ConservativeParty Councils. Only in respectof the citizenshipmodel is there emphasis on both individualand collective tenant issues, including detailed information being provided on tenants'rights; this, accordingto Caimcrosset al (1997),would be reflectiveof Labour

Party controlledCouncils.

The authors,like Handy,acknowledge that actualorganisations do not reflectthese ideas fully with manyviews and political persuasionsevident at differentorganisational levels. 124 iii) Typologies: A Critique

Turning now to evaluatethe typological models hitherto discussed,the following points are made. On a positive note, the models highlight the large number of elements that constitute organisational culture, elements that link systemically to enable a general descriptionof cultural characteristicsto be identified,for example,whether organisational. structures and information strategiesappear to be promotional of rights issues.Yet as both

Handy (1993) and Cairncross et al (1997) themselves acknowledge typologies do not represent actual organisations. In the latter's study of tenant participation structures best suitedfor the promotionof tenant'srights, for example,the authorsconclude that eventhe citizenshipmodel that providestenants with opportunitiesfor greaterpower and community action may not suffice to ensurerights are protected."' Their scepticismstems from the fact that tenantslack power vis-i-vis the leadingpolitical parties and professionalstaff who control the housing bureaucracy,a bureaucracythat promotes tenant participation becauseit is perceived as representing good practice (thereby accruing political kudos), but also becauseit tendsto confinedebate to local managementissues as opposedto policy matters.

A secondproblem associated with using ideal typologiesto accesshow effectivesuch organisationsmight be in the implementationof rights is the fact of organisational.variability, the fact that no two organisationsare alike. Nor for that matter are the individualswho work within organisations,all of whom possesstheir own personalvalues and attitudesthat may (or may not) synthesisewith professedorganisational cultural norms espousedin corporate policy documentation. There remainsalways the latent possibility, then, that espousedcommitments to rights mattersare not sharedby personnelin key positionswithin the organisationalhierarchical echelons.

132Tacitly suggestedwithin the author'sargument, of course,is that evenLabour Party acolytes may lack commitmentto citizenshipideals in practice. 125 c) WorkMethods andPractices

In the evaluationof rights implementation,it is necessaryto analyseactual local authority housing managementservices. This premiseis basedon the following points. Firstly, local authorities play a pivotal and political role "in transmitting public housing 'law' from central government to the citizen" (Loveland (1995) p20). Secondly, as state agencies, local authorities, are expected by Central Government to "govem their local areas, rather than simply administercentrally defined serviceson an agencybasis" (Loveland (1995) p2l).

The paramountrole of local authoritiesas administratorsof public law, therefore,entails that organisationalpractices that might impact negatively on effective rights implementation should be of focal interest. In assessingsuch practices,then, it is important to assess administrativeprocesses in context,to analysethe effectsof factorssuch as workload and training on administrativepractice. As Loveland (1995) highlights:

"Logistical overload, poor working conditions,and a tendencyfor casesto be

handledby unsupervisedand badly trainedjunior staff might all be presumedto

reducethe likelihoodthat welfarebureaucracies would consistentlyproduce legally

accuratedecisions " (p24).

Work methodsand practicesin public sectorhousing management are, theoretically, determinedby the policiesand procedures agreed at strategicmanagerial levels. It shouldbe emphasisedthat such policies require to be alignedto corporate council strategiesand policies. Further, and as Legg et al (1981)) note in their study of how council housing managementmight be improved,two essentialfactors are involved. Firstly, policiesmust be clear and unambiguous,indicating standardsof performanceto be achieved.Secondly, organisationalstructures and set proceduresmust be in placethat allow policy objectivesto be met. Yet the study indicatesthat "poor quality of management"does occur "in a

126 substantialminority of casee', primarily becauseof a gap in practice between stated policies and what actually occurs in the work place, a problem exacerbatedby a dearth of clearly defined"standards to be achievedin the activitiesand services"(Legg et al (1981) p133).

The thesisnow examinesthose factors within the work placethat can affect adverselythe implementationof tenants'rights. This is carriedout by referenceto the following factors: policies and documentation; communicationstrategy; workload; performancemanagement andpersonnel matters. i) Policies and Documentation

The Baseline Study of Housing Managementin Scotland (Clapharnet al (1995)) showed that manycouncil landlordshad failed to developcomprehensive and detailedpolicies and proceduresin respect of tenancy managementissues. Such an omission is of some importancefrom the perspectiveof rights implementationsince staff a) will therebylack clearinformation on whichto advisetenants of their rightsand b) documentationwill not be available to tenants in a format that is both easy to understandand capable of dissemination."' As Claphamet al (1995) emphasise:

"The lack of written policiesand procedures is an importantissue which hasarisen in

a numberof placesin the report andwhich deservesfurther emphasis.It is difficult

to seehow staff canbe effectivelymanaged, or tenantswell-informed if policiesand

proceduresare not written down and widely availableto both staff and tenante'

153).

Again, in respectof tenancyagreements that are critical in setting the contractual frameworkfor the developmentof servicestandards between landlord and tenant (University of Stirling (1995)), Mullen et al (1996) noted that many local authority secure tenancy

153It shouldbe notedthat this studyprc-datcs Local Governmentrc-organisation and mattersmay have improvedin respectof policy documentationstandards. A freshempirical survey is requiredto ascertain currentdevelopments. 127 agreementsare poor qualitatively, both in respectof content and presentation."' And, albeit that tenancy agreementsthat do not contain the legal rights of tenants do not negate such rights, without a clear expositionof the latter, tenants"may be unawareof these rights becausethey are very often not mentionedin their tenancyagreement and thus not ableto exercisethem (Mullen et al (1996) pv). It should be emphasised,though, that both studies relate to the analysis of local authority policies and tenancy agreementspre-Local

Governmentre-organisation and their findings may not reflect current practice given that a numberof local authoritieshave since adopted new leases."'

This point is of particular relevancegiven the findings of Scott et al (2001) in the most recent research survey of housing managementpractice in Scotland. For example, this researchconfirmed that there have been many changesaffecting the organisation of housing authorities since the last Baseline Study was carried out in the early 1990's" (Scott et al

(2001) p122). And - of potential importance from a rights perspective - the research revealedthat:

"The post-re-organisationcouncils were more likely to have tenant participation

policies,to provide informationto tenantson a rangeof issues,to use a variety of

forms of consultation and to consult on a range of issues"(Scott et al (2001) pl. 17).

To this issuethe thesiswill returnin Chapter3 whendetailed evaluation of the relevance of policy documentationto rightsimplementation is carriedout (seepp 178-189). ii) Communications

In additionto internalhousing departmental policy documentation,implementation of rights is also likely to be affected by the communicationstrategy adopted by local

In termsof the Unfair Termsin ConsumerContracts Regulations 1994, Reg 6, leasesrequire to be draftedin clear intelligible language. Someauthorities have adopted the ChartedInstitute of HousingModel Agreement(1997)known as MOSTA. 128 authorities. Failure to provide tenantswith detailed rights information in clear unambiguous language,for instance,can effectively 'block' opportunities for tenants to exercisetheir legal rights. As the University of Stirling (1994)) points out, though, having an information or communicationsstrategy should be as centralto housingmanagement practices as other policiessuch as allocations.Thus, the developmentof tenant participationstrategies that encouragecommunity networks to enabledebate - includingdiscussion of rights - shouldbe implementedas part of communicationsstrategy. Yet, as Clapham et al (1995) suggest, at least two major deficienciesin existinglocal authoritypractice can be discerned. Firstly, although quality of information materials issuedto tenantsvaries greatly among authorities, muchof the informationis often unsatisfactoryin termsof rights matters. Secondly,and in developingthis point, the samestudy revealedthat lessthan half of the local authorities,

New Towns and ScottishHomes had written tenantparticipation policies", with "over two thirds of tenants requesting "more influence over important decisions that affect thenf'

(p56).

Ensuring that tenants are fully aware of their legal rights is a necessaryfactor (albeit not a sufficient one) in empowering them to exercise such rights. Inducing local authorities to publishtheir performancein respectof rights implementationcould be an importantmethod of enhancingtenant awareness of rights issues.Yet currentinformation provided to tenants on performancestandards achieved is likewiseopen to criticismfrom a rights standpoint."'

In England and Wales, tenantsof local authoritiesmust receiveannual reports outlining housingmanagement performance; such reports must be receivedby the end of September each calendaryear (Hughes and Lowe (1995)).157 Circular 10/94 outlines minimum

156 This information is provided to enabletenants to assesswhether quality servicesarc being achieved. "Quality" in this context essentially meansbringing about customer satisfaction and is seentoday as "the key to achieving competitive advantage' (Armstrong (1995) p284). 137The Local Government and Housing Act 1989. 129 information requirementsand theseinclude suchthings as target responsetimes in relation to repairs, allocations made, voids and re-let timescales.Information can include both qualitative and quantitative matters and local authorities can also provide whatever additionalinformation they choose. In Scotland,local authoritytenants enjoy similarrights to informationconcerning standards and performance in housingmanagement, as well asthe right to be consultedon what mattersare to be published."' In addition,local authoritiesare also obliged to publish certain performanceinformation which enablesthe Accounts

Commissionto comparestandards of performanceachieved by different authoritieson an annualbasis and thus draw appropriate comparisons(The Accounts Commission(1993/94)).

At this stage, though, consideration of the type of information produced by local authoritieswould suggestit is mostlydevoid of informationconcerning tenants' rights. The statutory indicators required by the Accounts Commission, for instance, involve only quantitative measuresof performancesuch as time taken to complete specific categories of repairs,void losses,re-let timescales,rent arrearsand housingbenefit statistics, house sales and homelessnessissues such as lengthof stayby applicantsin temporaryaccommodation.

There are no statutory indicatorscovering such fights as the numberof tenantsrefused accessto their files and/orappeals lodged, nor levelsof compensationpaid to tenantsunder the right-to-repair scheme."" Again, there are no indicators concerning eviction actions raisedand outcomes of theseactions.

With regardto the apparentdearth of qualitativestandards of measurementavailable,

Lipski (1980) offers an interesting perspective. In his view, organisationsdevelop surrogate performanceindicators which canbe readilyquantified, as opposedto more complexissues

15'The LeaseholdReform. Housing and UrbanDevelopment Act 1993,s 153. 139It maybe, of course,that suchinformation is providedby individual local authoritiesto their tenants,a matterwhich would requireempirical research to corroborate.Certainly, a broadrange of standardsin respectof individual tenants'rights arepossible. See, for instance,NFHA (1987). 130 such as assessmentof staff advice to clients which requires a greater element of supervisory control. Yet meeting these indicators does not necessarilyentail a quality service has been achieved, especially since "behaviour in organisationstends to drift towards compatibility with the way the organisationis evaluated"(p52). To quote the sameauthor:

"Housing inspectors can appear to increasetheir productivity by inspecting more

prernises,but this is at the expenseof lowering their standardsand reducing their

time spent for inspection" (p52).

Again, evenwhen information is providedto clientsabout service provision, the ability by the latter to assesscritically such informationis affectedbadly by a) lack of knowledge about what constitutes quality service and b) how different organisationscompare, particularly if only quantitative perfonnance indicators exist. In brief, although bureaucraciesmay strive to be accountablethrough published performance criteria, as Lipski adds, "there are really few valid statisticswhere the quality of perfonnanceis at issue7'

(Lipski (1980) p 52). iii) Workloadand Methods of Work

Legg et al (1981) cite the problem of workload as having a crucial impact on the quality of servicedelivery and, by implication,that pressureson staff exert a negativeinfluence upon rights implementation.Reasons for workload pressuresare varied but include the following: the growth of decentralisedhousing managementservices that tend to be deliveredby housingofficers often carryingout a generic,as opposedto specialist,job rernit ie responsiblefor most mainstreamhousing managementfunctions (allocations,estate management,homelessness, and arrears)." The problem of workload is further compoundedby the fact that dutiesthemselves comprise clerical and administrative work, as

160 Genericworking by housingofficers stemmed partly from the genericsocial and communityworker approachthat evolvedin the early 1970's. 131 well asfieldwork dutieswith no cleardelineation of task prioritiesprovided either within the employeejob profile ie job description, or set performance targets. Other difficulties associatedwith workload that are noted by Legg et al (1981) concern unsatisfactory office conditions,inappropriate distribution (by management)of staff resourcesvis-a-vis actual work generatedand a lack of reviewconcerning what is happeningin practice.

And similardifficulties have been confirmed by other studies."' Lipski (1980)points out that workers in public sector organisationsgenerally have heavy caseloadsrelative to actual responsibilities,citing the case of legal serviceslawyers who may only be working actively on a dozen or so casesout of a caseloadapproaching one hundred. Indeed, Lipski propoundsthe view that high quality servicesare not politically feasiblegiven the costs involved,a stancebased on his assumptionthat demandis elastic,expanding in line with supplyof adviceservices. Thus, street-level bureaucrats often become immersed in a 'cycle of mediocrity"", unableto providequality servicesbecause of unduly excessivepressures of work and- as a consequence- adopt or mouldpolicies to job demands,in effectwork is routinised and simplified as a way of coping. Again, as Loveland (1995) points out, in respectof homelessnessapplications, that:

"Excessiveworkloads can also have a readily identifiableeffect on an authority's

willingnessand capacityto respect even straightforwardlegal constraintsin its

decision-makingautonomy (p137).

Despitethe importanceof theseassertions from the perspectiveof rights implementation, however, it seemsthat workload by itself is insufficientto explain housingmanagement ineffectiveness.Malpass and Murie (1994), for example,criticise the assumptionthat "the

161The two studiesgiven here,it shouldbe stressed,identify majorproblems already existing before the massivechanges that haveoccurred since 1980 and that havegreatly exacerbated work pressures. 162The term 'strcet-levclbureaucrat' describes "those public serviceworkers who interactdirectly with citizensin the courseof their jobs andwho havesubstantial discretion in the executionof their work (Hudson(1997) p394). 132 key element determining the nature and effectivenessof housing managementrelates to staffing and organisationalattributee' (p306), suggestingother factors as being crucial such as fiscalarrangements or demographiccharacteristics. Indeed, these authors emphasise the difficulty in "identifying the effectivenessof housingmanagement", noting that landlord organisationstend to "perform unevenly"and that, "None fall down in every respectand none perform well in every respect" (p3 10). Thus, it can be assertedthat evaluation of housing managementeffectiveness requires detailed scrutiny of individual landlord practices involving somemeasurement methodology for specificservice functions, a key test being whether service provision is, to quote Malpass and Murie again, "responsiveto the interests of tenants and applicants" (p312). And other points can be raised in support of the above.

Workload levels and their effectson rights issuescannot be assessedthoroughly without taking cognisanceof such factors as different ability levels among housing staff, or specialist trainingrequired to enablestaff to managetime moreeffectively"', issues that are addressed in the concludingsection of this Chapter.

A relatedissue that hasfeatured in the literaturereview, though, concerns work methods, in particular the implications of generic as opposed to specialistworking practices.

Argumentsin favour of genericpractices are varied, including improved services to tenants, increasedefficiency and enhancedcareer developmentopportunities for staff versed in comprehensivehousing managementfunctions. Yet in his theoretical study of generic housingworking practices,Saunders (1993) arguesthat genericworking is likely to prove less effectivewhere specificconditions remain unfavourable. Theseconditions comprise, inter alia, the following elements: inadequacyof performancemeasurement; organisational crisis such as severefiscal constraintsor personnelproblems; low spendingon housing

163This is not, of course, to suggestthat failure to carry out job tasks within an allotted timcscale is a problem attributable to individuals. In situations where workload is excessive,time managementis no panaceafor resolving such problems. 133 managementservices, for instance, "one training officer for the whole housing service"

(p11), or excessiveworkload dutiesfor staff; low levels of trained or qualified staff, a dearth of leadershipskills, particularly at middle-managementlevels where staff are subservientto the whims of seniorpolicy staff; and lack of political commitment.161 With specificreference to housingmanagement and effectivepractice Saunders (1993) suggests that patch sizes averaging over five hundred properties would generally represent an unfavourablework conditionnot conduciveto genericworking.

Despitethese concerns, though, consideration of the literatureconfirms that there has been little researchconcerning the effect of generic working on effective implementation of legal housing rights. Claphamet al (1995), in their Baseline Study of Housing Management in Scotland,for instance,note simply that :

'Troblemscould occur,however, if the workloadwas high and staff hadto prioritise

betweenimportant competing claims. Training (was) consideredto be essentialif

staff were to perform effectively the wide range of tasks involved in generic

working" (p33).

Again, in the most recentresearch of currenthousing management practice in Scotland,

Scott et al.(2001 A) highlight that organisationalstructures vary greatly and that:

"The study points to a needfor further researchspecifically focused on alternative

ways of managinghousing services. This should examinethe generic versus

specialistrole, and the in-houseor externalprovision of servicesin areassuch as

anti-socialbehaviour, rent arrearsand factoring. The aim would be to develop

guidancewhich would assisthousing managers to assessthe advantagesof one

approachas moreappropriate than the otherin particularcircumstances" (p 113).

164As the following Chaptersclarify mostof theseconditions are unfavourablein both CouncilA and CouncilB. 134 Thethesis will returnto this themein the casestudies. iv) Performance Management

The Best Value strategy adopted by the Labour Party endorses performance measurementas a central feature. Boyne (1998) claimsthat Labour is even keener on measurementthan the Conservatives.And failure to meet specifiedBest Value standards could resultin CCT beingre-imposed on local authoritiesas a punishment."' Performance measurementis chiefly carried out through performance indicators that aim to reflect

"economy, efficiency and effectiveness,with an emphasison value for money and quality"

(Jacobs and Manzi (2000) p90)." Integral to this process, then, is that of organisational audit that symbolically transforms public sector administration into public sector management:

"a benchmarkfor securingthe legitimacyof organisational.action in which auditable

standardsof performancehave been created not merelyto provide for substantive

internal improvements to the quality of service but to make these improvements

externally verifiable via acts of certification" (Power (1997) p 10).

The performancemanagement culture has, however, been criticised because of inherent defects that can prejudice the effectivenessof service delivery, including rights implementation.These criticisms are now examinedin detail.

Kemp (1995) highlightsthe fact that measurementof housingmanagement perfortnance is an importantissue. Yet establishingthe causalelements of desiredoutcomes is far from easy, indeed performanceitself being a contestablenotion and one laden with value

The origin of performanceindicators in Governmentemanates from the FinancialManagement Initiative in the early 1980's(Jacobs and Manzi (2000)). It is a modeloriginating in massproduction processes in the privatesector Western economics (Stewart and Walsh(1992)). Serviceefficiency is mcasurcdby inputs(resources used) and outputs(services produced) and service cffectivenessby outcomesor objectives(what is achievedby producingservices cg tenantsatisfaction) (Kemp (1995)). 135 judgementsas to what differentiatesgood from bad performance."' And problems inherent in evaluatingthe precise causesof actual outcomesis compoundedby the complex nature of housing managementitself, for instance,differences in both stock and tenant characteristics that obfuscatethe determinationof clear causalmechanisms in servicedelivery. Indeed,

Harvey (1999) goes further by criticisingthe perfonnanceindicators produced by Central

Government",referring to them as "crude and secondorder indicators"that havenegative effectson both the natureand level of servicesdelivered by staff, for example,by creating considerableadministrative work that diverts staff from providing services,particularly servicesto thosewho live "in the mostdifficult areaswith the poorestpopulatione' (p 17).

Further criticism against the performance assessmentsystems in British housing managementhas been pennedby Claphamand Satsangi(1992). According to these authors, the essentialaim of the performancemanagement culture has been to "strengthenthe accountability of housing managementto Central Government" (Clapharn and Satsangi

(1992) p73). The culture of performancemanagement has not, however, been of practical benefitto tenantsgiven the performancemanagement focus on efficiencymeasures with fair

"assessmentsof the effectivenessof services"and little attentionpaid to the "consumer voice" (Clapham and Satsangi (1992) p70). Indeed, the authors claim that performance assessmentsystems will not improve service delivery (including rights implementation) without "direct consumer-citizenparticipation in the designand operation of theseschemee'

(Clapham and Satsangi(1992) p7l). Clapharnand Satsangi(1992) affinn:

"Not only should the views of tenantsbe used as indicatorsof performance,but

tenants should be involved in choosingappropriate indicators and therefore in

CauW factors in outcomes,for instance, comprising staff ability, or attitudes, organisational factors, tenant participation etc. 168See the DETR's consultation paper "Performance Indicators for 2000/2001' that proposesfourteen best value performance indicators and another six Audit Commission performance indicators. 136 defining the criteria of succese'(p7l).

Yet perhaps the criticism raised by Jacobs and Manzi (2000) is the most damning regarding the negative impact on service delivery likely to derive from promotion of a performance managementculture. By applying a constructivist model of management analysis,Jacobs and Manzi (2000) identify six key problemsof performanceindicators in respectof housing-relatedtopics. "'

The first problemis that performanceindicators focus on specificareas such as rent recoveryand voids with identifiablequantitative outcomes and affects standards of servicein two waysa) stafftime is concentratedon particularareas of work andb) work is focusedon short-termas opposedto long-termmatters, such as the developmentof a rights strategy.

As Jacobsand Manzi (2000)affirm: "The resourcesdevoted to a narrowrange of tasksmay subvert other aspectsof the organisation'sfunctions" (p97).

A secondproblem is that indicatorsare seenby staff as beinga form of control that can damage staff morale and result in potential organisational conflict, a situation that is extremely detrimental to the provision of a quality housing service that inculcates commitmentto nghts."

The third problemassociated with the performancemanagement culture concerns that of atrophy. Work practicesfocus solely on task completionat the expenseof creativity and discretionwhich can be a key elementin ensuringthat housingpractices are deliveredin a lawful fashion.

Mediocrity and deceptionare further bed partners of performancemanagement

169Social constructivism acknowledges that researchis not neutral,that factualknowledge is in fact contested.Power relations are exploredas part of constructivism.that regardsmanagement not as a given,but as somethingthat hasevolved out of practiceand constructedthrough processes that reinforce existinginstitutional relationships (Jacobs and Manzi (2000)). The problemsare classifiedby reference to parochialism,self-interest, homogeneity and atrophy,mediocrity and deception. 110Managers are aware,for instance,of limitationsin view of low levelsof training and investmentin staff development. 137 confirming concerns of other theorists such as Lipski (1980). Mediocrity is reflected in patterns of work shapedby an organisationaltendency to secure only moderate levels of performance; while the figures relevant to achievementof targets, particularly where targets have been set unrealistically, are routinely falsified, for example,either at staff level to stave off managerialreprimand or at organisationallevel not to prejudice strategic requirements. d) PersonnelMatters

Loveland (1995) notes that the professionalqualification in housing traditionally served to meet "the needsof practisinghousing officers" by offering a detailedknowledge of housing managementfunctions (p24). Of some importance from a rights perspective, however,is Loveland'scriticism of the housingqualification because of the "limited role that legal training playedin the IOH qualification",although this is "perhapsunderstandable given successivegovernments' evident disinclination to place tight legal controls on public sector management"(Loveland (1995) p25).

Yet as Loveland himself acknowledgesthese commentsabout the tangential connection between housing managementeducation and legal training related primarily to the situation prior to 1991 when the CharteredInstitute of Housing professionalqualification was restructured.Indeed, Scottish University courses on housingmanagement have proliferated in recent years and training in housinglaw has becomean integral componentof these courses. Giventhat housingadministration involves the implementationof housinglaw it is extremelyimportant to considerwhat trainingand education housing staff receive. i) Staff Training: Background

The importanceof training for housingmanagement staff was explicitly recognisedas earlyas 1959when it was statedcategorically that:

"Efficient managementof housingestates of the sizeand valueof thosenow owned

138 by local authorities cannot be achievedwithout trained and qualified staff' (CHAC

(1959) p30).

The natureof what this trainingshould comprise remains a matterof debate(see below).

But training programmesthat encapsulateknowledge of relevant law have been regarded as being an essential element of good housing practice (Clarke (1981)). Again, Saunders

(1993) has emphasisedthe central role of training, not merely as being integral to effective policy implementation, but its primacy in meeting the needs of generic housing officers whose work encompassesa broad range of legal matters. And, more recently, the importanceof training to overall organisationaldevelopment and the "pursuit of business excellence7'has been stressed (Reid et al (2000)p3). Further,it is critical to the successful implementation of local authority best value strategies that training receives appropriate organisationalpriority (CIOH (2000)). And, in the rapidly changingenvironment of Local

Government,Hender (1993) stressesthat both officers and membersrequire "constant training and re-training if they are to be fully effective" (p 115). This point was highlighted as being of particularsignificance in an early studyby Stanforthet al (1986) that revealed poor deliveryof repair servicesto be largelyattributable to inadequatetraining. To quote theseresearchers:

"Training should not be seenas a 'once and for all' event, since it needsto be

continuousif it is to be effective,and authoritiesshould again have sufficient staff to

be ableto releasea proportionregularly for training" (Stanforthet al.(1986) p74).

Yet generalreports indicatethat, in the nationalcontext, training may be receiving insufficient priority. Murray and Steedman(1998) reveal that 52% of the UK population of those aged between 16-64 are low skilled and lack upper secondary(or vocational )

139 education"'; while Wilson (1999) highlights organisationalconcerns in respect of a shortage

of professionalstaff. With specificreference to the Scottishcontext, an early study noted

that, althoughtraining was receiving greater consideration, expenditure on trainingprovision

remainedlow (University of Strathclyde(1989)). "' And of serious concern from a distinctly

housing management perspective are the various studies that reveal the relatively low priority afforded to training within the field of housing management.Prior to evaluation of these studies, though, it is important to take cognisanceof the following points. Firstly, training is used in this thesisto denoteall forms of learning,including education that has often beendistinguished on accountof its allegedlyacademic learning focus (knowledge as a processof self development),as opposedto practicalworkplace learning associated with training. "' This follows the position noted in recent research that suggests that many employersno longer make a clear distinctionbetween education and training (Reid et al

(2000)).

Secondly,whereas training provision may be a necessaryelement in equippingemployees with the relevantknowledge to adviseclients of their legalrights, thereby assisting with the implementationof such rights, this training is not a sufficient factor to ensurethe latter.

Quantity of training,for example,is not cognatewith quality of training (seebelow). Nor doesthe provisionof training(quality issues aside) ensure that learningobjectives have been achieved. Staff members,as individuals,all have different learningcapacities as well as trainingneeds. Assessment of both factors- in tandemwith the provisionof qualitytraining

Basedon the ISCEDclassification standard that equateslow skilled asbeing ISCED 2 or below,or individualswithout generalor vocationalsecondary education. 172In the British context,however, Wilson (1999)has pointed out that British employersin globalterms spendconsiderable resources on training with expenditureexceeding L10.6 billion pa. Wilson outlinesa rangeof factors,though, that can act as disincentivesto training, namelya) costsinvolved in providing training, b) the fear of poaching,c) deemedto be unnecessary,and d) workloadpressures on staff. 173Etymologically derived form Latin educare- to leadout. The dictionary,though, defines training as involving the processof education(Chambers (1994)). 140 is be in 114 - is critical if training to effective practice. The studies of training examined below,however, focus essentially on quantitativetraining issues, as distinctfrom issuesof a qualitative nature, a focus that is itself largely attributable to the dearth of data concerning

115 qualitativematters. ii) Staff Training and Housing Management

In their study of the impact for rights in practice resulting from the introduction of the

Housing Act 1980, Kay et al. (1986) reveal that training for staff on the new rights introducedas a result of the creationof securetenancies was minimal,an occurrencethe authors consider to be unsurprising given the fact that, historically speaking, "housing managementis weak on training" (p3 1). The low priority traditionally afforded to training by the housingmanagement profession has also beencorroborated by official government reports that stress the urgency of providing greater investmentin in-service training (Audit

Commission(1986)). Again,with referenceto the pre-1980situation, it hasbeen noted that cconly4 per cent of some fifty thousandhousing administratorshas a work-related professional qualification" (Loveland (1995) p25), a fact which can partly be explained by referenceto the late emergenceof housingmanagement as a separate'profession', coupled with its lack of status"within a fiercelycompetitive policy marketplace" where competition was rife with other professions(such as architecture,engineering, and socialwork), and - more important- the competitionbetween housing professionals and local politicians"who havetraditionally taken a closeinterest in housingmattere' (Laffin andYoung (1990)

174The CharteredInstitute of Housinghas confirmed to the presentwriter this particularproblem insofar as employersfrequently send to the sametraining courseemployees with greatlyvarying levelsof current knowledgeand experience.Failure to addressthe abovepoints, then, mustcast doubt on the benefitsto certainstaff of attendingthese courses. 175Such matters would includeassessment of, inter alia, the impactof training on staff outputs(efficiency), or improvementof servicequality to clients(effectiveness). 141 p2l). "' Indeed, from a historical perspective,housing has been largely ancillary to these other services,often consideredto be simplyan administrativefunction of allocatinghouses and collecting rent (Provan and Williams (1991)).

And the situation appearsgraver still if more recent statistics are taken into consideration,particularly those compiled by the CharteredInstitute of Housing. Previous reports,for instance,revealed that scantresources were allocatedto training and that few staff held a housing professional qualification."' But concern about inadequate training remains as highlightedin Keoghan and Scott's (2000) CharteredInstitute of Housing millennium report."' Although certain improvementshave occurred, for example,the developmentof more training policies and specialisttraining officers in post, the study notes that quaittily of trainingprovided falls below Audit Commissionrecommendations. "' With respectto qualificationsheld by housingstaff, the studyfound that lessthan 7% of housing staff held a professionalqualification, a figure that appearsto have declined since 1992. The study cites decliningsponsorship by local authoritiesas a principal cause,although the numberof qualifiedstaff who left employmentas a resultof Local Governmentrestructuring may alsobe an importantfactor.

Despiteacknowledging the positivecontribution the studymakes to the trainingdebate in

Scotland, it is important to note the following points. Firstly, having a policy or a specialist training officer in post doesnot entailthat eithermore or better quality training will ensue.

"' For the older traditional professionsand Local Government training generally, training historically focused on qualifications by examination and was mostly white-collar (Fowler (1980)). 177Chartered Institute of Housing surveysof training and education need first began in Scotland in 1975 (Kcoghan and Scott (2000)). Seebibliography for details of the Chartered Institute of Housing reports (1011(1986B) & (1990) and Scott (1993)). This study, it should be noted, distinguishes education from training, the former concernedwith housing coursesdelivered by Universities and Colleges throughout Scotland, the latter provided essentially by employers. 179Twenty three local authorities (or 72% of all councils) respondedto the Chartered Institute of Housing questionnaire. On averageeach staff member is receiving only four days training per annurn as opposed to the ten days recommendedby the Audit Commission. Training provision, of course,varies among councils, this figure being an averagefigure only. 142 Training policies may be 'paper exercises'only, for example,and training officers may have job roles involving mainly administrative duties, thereby having little input into the

determinationof actual training priorities or on training delivery.

Secondly,estimated numbers of trainingdays required, ie quantityof training, must be refinedin the light of both a) actualtraining needs assessed against job requirementsand b) individual staff learningtime requirements. In short, the study makesno referenceto training theory, in particular the training cycle. This point is discussedin greater detail later

(seepp 240-241).

From an organisationalstandpoint the question of quality training involves the creation of a workforce that, as a direct resultof trainingprovision, can fulfil job requirements,thereby leading to the fulfilment of corporate organisational strategic objectives. As Offe (1984) points out, the purpose of training within capitalist society is not simply to provide knowledgeand abilitiesto people; rather is it to enableindividuals to "use their labour power as commoditiesin the lahour marketto meetthe strategic objectives of management'

(pl27). "'O Training, in this view, is not primarily concernedwith personal interests but with cconditioning'employees to perform tasks that are often routine and tedious in nature.

Indeed,training staff to higher levelsthan requiredto completesuch tasks is not merely wastefulof resources;it is alsopotentially disruptive of workplacehannony.

For this reason,then, there has been a proliferationof vocationalqualifications (VQ's), qualificationswhose prime intention is to ensurethat employeesare equipped(through training) "to perform in a range of work related activities" in line with agreed standardsof competence(Jessup (1991) p15). Althougheducational housing courses continue to havea

'goJust as training in the workplace aims at creating a compliant workforce, education too aims to turn out loyal subjectswho do not challenge the existing corporate-dominatedsocial order (Parenti (1998); Johnson (1999)). 143 high profile in Scotland, Keoghan and Scott (2000) confinn that 43% of local authorities arenow registeredon an SVQ centreand there'sconsiderable interest for developingVQ's with 48% of organisationsstating that "their staff would be interestedin undertaking housingrelated Scottish vocational qualifications in the workplace"(p20)."' It shouldalso be emphasisedthat this intereststems from the organisationalperspective that viewstraining asbeing a cost andnot an investment.VQ programmes,by focusingon essentialjob areasas opposed to (from the employer perspective) extraneousissues integral to higher or further educationprogrammes, are consequentlymore acceptableto organisationalfiscal strategies andalso more adaptable. "'

Keoghan and Scott (2000) highlight employers' opinions to the effect that support for educationalcourses is likely to increaserather than diminish. They also note, though, the belief held by increasingnumbers of employersthat take-upof vocationalqualifications will also increase. Such viewpoints are highly subjectivein nature, of course, and actual outcomeswill hingeon a variety of factors,for example,whether VQ's becomeestablished in the Scottish training market, financial pressureson training budgets, p-rofessional employeedevelopments that may tilt the balanceof current training support, as well as employersbecoming aware of the many training programmesand products available"' (Reid et al (2000).

Professionalcompetence-based vocational education in Scotlandhas been heavily criticised, however, by different theorists, criticism that is important from a rights

Whetherthis is staff or organisationaldrawn interest is of coursea mootpoint, requiring more informationabout whether staff arebeing given optionsbetween further educationaland in-houseVQ training courses. That is, VQ's operateon the basisof modularoutcomes. Thus, employees can be providedwith particularmodules (even particular elements within thosemodules) thus minimising costsassociated with employeesat training being"off thejob". Researchcarried out involving five hundredhousing employers in the rentedhousing sector across the UnitedKingdom. 144 perspectivesince vocational educationis potentially antitheticalto rights development.

Winch (2000), for instance, stresses that New Labour training policy fails insofar as vocationalqualification frameworks do not incorporatethree crucial elements: theoretical knowledgegained "off the job", simulatedwork environmentthat enablesstaff to practice, and supervised work in authentic work conditions. While Canning (2000) argues that learning achievementsof current VQ programmestend to be narrow and superficial, programmestending to neglect"in-depth coverage of underpinningknowledge" in favour of an "emphasison mechanisticlearning" (p89). In addition, Canning argues that the promotionof VQ programmesis drivenby bureaucraticand institutional interests rather than employerled. "'

Prior to carrying out an assessmentof how staff attitudes might impact on the implementation of tenants' rights, it is important to emphasisethe issue of staff ignorance that resultsfrom lack of appropriatetraining. In situationswhere neither staff nor tenants are awareof legal provisions,for example,particularly if relevantpolicies and procedures are poorly developed,it is likely that tenants'rights fail to be met in practice. Anotherissue of concern,though, is the fact that staff, unawareof their own ignorancebecause of limited knowledge,may well provide wrong informationto tenantson the understandingthat it is actually correct. ii) Staff Attitudes

Attitudes of staff are often consideredto be an influential factor affecting the implementation of tenants' rights"' (Smith (1991)). Before discussingthis topic in more

184That is, the interestsof the EnterpriseNetwork. Canningacknowledges, though, that the studyof studentscarrying out SVQ's at levels4 and 5 cannotbe definitivegiven the relativelylow level of 'students'surveyed ic two hundredand thirty six (or 37% of the total numberof suchstudents of six hundredand forty). Attitudesof thejudiciary havealready been considered in an earlieraction. As Lipski (1980)notes in respectofjudicial attitudes: "courtsdifferentiate among people charged with the sameoffence on the basisnot of their streetbehaviour but of their courtroombehaviour". 145 detail,it is importantto determinewhat the term "attitude" actuallydenotes, as well as the question from where attitudes arise. At a superficial level, attitude is the way a person communicatesher/his mood to others; more specifically,attitude is a "mind-sef', the way one considersmatters mentally (Chapman(1995). As Bums (1986) adds, though, attitudes comprise three elements, namely a) a person's beliefs about something, b) an affective componentof how the person feels about something,and c) a behavioural aspect concerningwhat a persontends to do about something,either verbally or non-verbally.

Bums alsohighlights the discrepancythat canarise between a person'sbehaviour and her/his professionalbeliefs, the latter concealedin oppositebehavioural patterns to assuresocietal acceptance."'

Regarding how attitudes arise, their origin of course stemsfrom a broad range of factors.

Social classand environmentalfactors are critical, for instance,as are influencesresulting from peer pressuresand educationalachievement. Thus, many attitudes exist prior to employment of individuals by housing organisations. But organisations,too, play a crucial role in shapingstaff attitudestowards their clients, attitudesnever simply originating in vacuo. For example,staff workersexperiencing excessive work demandsmay well 'screen' homelessapplicants to reduceworkload, or mould their perceptionsof clientsto apportion blameprimarily as a methodof copingwith stressfiilwork situations."" And attitudesare further shapedby organisationalbureaucratisation and the evolution of a perfonnance measurementculture that can actually interferewith the quality of serviceprovision by inducing staff to focus their energieson the quantitativejob measurementsin place, as opposedto qualitativeaspects of providingtenants with adviceand information.As Lipski

(1980) notes, perfonnanceindicators can actuallyproduce negative effects in the present

This is known in psychologyas cognitivedissonance. A psychologicaldefence mechanism known as displacement(Bums (1986)). 146 work climatebecause of their demandson overworkedstaff Finally, the effectsof Local I Goverment re-organisationhave undoubtedly served to exacerbatea deteriorationof staff

attitudesbecause of the following: reductionsin levels of staff employed,either through

suspensionof recruitment; failure to replace staff, particularly problematic where more

experiencedstaff with critical skills leave (through early retirement, say); and the demotivation of public sector staff caused by a variety of factors such as increasing workload, wage limiting practices and a stressful working environment. Indeed, this latter point has been recognised as a major reason why top quality managersleave the housing field, thereby leading to a less efficient housing service(Audit Commission(1986)).

The nature of attitude has now beennoted briefly, as well as the range of factors instrumental in its origination. But to what extent does attitude actually affect rights implementation? Mason (1991) comments,for example,that the tendency of housing staff to adopt paternalisticattitudes towards tenants has been "well documented"."' And

Widdowsonand Harland 's (1998)focus groups found that certainstaff, in additionto lack of knowledgeof currentlegal rights, tendedto be rule-boundin their dealingswith tenants.

Yet neither paternalism,nor being a stickler for the rules - albeit reflectiveof attitudes- necessarilyimpacts negatively on rights implementation,although it is conceivableof course that unsatisfactoryrelations may act as a disincentivefor peopleto use servicesand thereby fail to exercisetheir rights. And the matteris compoundedfurther by findingsgleaned from recent researchstudies that indicatehigh tenant satisfactionlevels YAththe way Council housingservices are deliveredto tenants(Clapham et al (1995); Widdowsonand Harland

(1998)). For example, as Clapham et al (1995) point out in connection with their major study of housingmanagement in Scotland: "Only 8% of tenantsthought that housingstaff

188A tendencyalready noted as being inherent in the drafting of local authoritytenancy agreements (Atherton(1983)). 147 were not approachableor friendly" (pl6). It should be highlighted, though, that variations occurredamong housing organisations and that, in one urban local authority,the research showed that 14% of tenants interviewed consideredstaff to be of unfiiendly or unapproachabledisposition. "'

Identificationof links that might exist betweenattitudes and effectssuch attitudes may have on rights implementation,then, is far from straightforward. Observationof staff working practicesand relationswith clientswould be one methodof identifyinglinks, but empirical research in housing that addressesthis topic is negligible. Again, organisational systemscould be implementedto monitorwhether documentation issued by staff contained attitudes of a "negative" nature that appeared to link to decisions taken, for example, treating someoneas being intentionallyhomeless for attitudinalreasons (dislike of person etc) rather than applying the intentionality test." The chief reasonfor carrying out such an attitudinal surveywould be to identify where attitudesheld by staff negativelyimpact on rights implementation, to be consolidated by staff training programmes to redress any problems.As Walker(1990) points out:

the information from the staff attitude survey is crucial to the design of a

custom-builtservice strategy, enabling the cultureof the companyto be changedto

supportcustomer orientation while takingstaff alongwith the change"(p57).

But auditingof this natureis not part of the statutoryperformance management systems and local authoritiesperformance management systems focus on quantitativeas opposedto qualitative performancemeasurements. It seems,therefore, that identification of links betweenstaff attitudesand rights implementationmust rely on other methodsof analysis,

189A total of two thousandtwo hundredand and twenty two tenantsfrom local authorities,New Townsand ScottishHomes, were interviewed. As Clapharnct al (1995)acknowledge, this wasnot necessarily representativeof all public sectortenants in Scotlanddespite the sizeof the sample. 190For example,assessing xO/o of written documentationfrom an attitudinalperspective.

148 chiefly of an inferential nature. The thesis now addressesthis by reference to allocation

studies,including homelessness.

Allocation andhomelessness policies operated by local authoritieshave been the focus of much empirical research,a variety of studieshaving shown how certain disadvantaged groups in societyhave often receivedless favourabletreatment in the allocationprocess.

Thus, people allocated housing in deprived difficult-to-let estatesare often homelesspeople with no other choice (Spicker (1998)). Or, in the case of ethnic minorities, racism and discriminationinstitutionalised in allocationpolicies are prejudicialto the interestsof ethnic groups, for example, by giving greater priority to existing tenants or those with local connections (RunnymedeTrust (1982); Breitenbach (2000)). Owner occupiers, too, have traditionally received lower priority, a factor that may discriminate indirectly against ethnic minority householders, many of whom live in poor quality owner occupied properties.

(Niner (1975); Niner and Kam (1985)).

And with referenceto general allocation practices, staff attitudes have also been credited as being influentialin the metingout of lessfavourable treatment to certainindividuals or groups."' Cullingworth (1979), for instance,cites the practice of 'grading' of applicantsby housingofficers "accordingto their suitabilityfor particularstandards of housing" (p42).

While Spicker(1991) reportsthat over 40% of local authoritiesuse home visits as a means of assessinghousekeeping standards of applicants,those adjudgedto be failing to meet acceptablestandards refused alternative housing offers. "' Again, a recent study suggests that decision-makingmay be affected prejudicially by attitudes as reflected by staff commentsto clients such as "you will never get another house as you are a criminal" (SYHN

(2000) p5).

I" This subjective assessmentis part of the lcttings processknown as secondaryallocations (Shelter (1982)). 192 This statistic is gleaned from the Institute of Housing (1990) Report. Housing Allocations: repL)rtof a suM of local authorities in England and Wales, IoH. 149 Yet, in evaluating these practices critically, it is important to note the following points.

Firstly, grading of applicantsmay fail to constitute good practice'9, but it is not unlawful for authorities to re-house applicants where they choose based on such grading reports, managementof stock remaininga discretionarypower of local authorities."'

Secondly,it is critical to distinguishunlawful practice that resultsfrom housingofficers carrying out poorly developedallocation proceduresfrom unlawful practicesthat result from officers deliberately flaunting legal requirements, for example, ignoring the rights of individuals becauseof attitudinal bias towards specific applicants or groups of applicants.

As Loveland (1995) notes in his fieldwork, although housing officers did express bias againsta range of applicants,there was nothing to indicatethat such bias reflectedthe legality of decision-makingin respectof homelessapplicants. 19' To quote Loveland (1995):

"It is one thing to observethat an applicant'sstatus or behaviourmay sometimes

4pissadministrators off, quite anotherto suggestthat such irritation thereafter

provokes subversionof legal norms" (p147).

Indeed,in Loveland'sstudy, despitethe fact that unlawful decisionswere frequently madeby housingofficers, these decisions occurred because of ignoranceof legal principles, not becauseof attitudinalperspectives. The role of attitudevis-a-vis rights implementation is, therefore,from an empiricalperspective as yet unclear."'

Summary

This Chapterhas examinedthe broad rangeof factorsthat potentiallyimpact upon the

193For details on good practice seeIOH (1993). 194The Housing (Scotland) Act 1987, ssl7-18. 193Loveland also notes that one local authority did harbour systematic (and unlawftil) bias against 'outsiders' and travelling persons. '9' The Council B Ombudsman casereferred to earlier in this Chapter is interesting from an attitudinal perspectiveinsofar as it suggeststhat an officer's opinion of a particular applicant resulted in "inaction and reluctance to determine" the application. 150 implementation of tenants' legal rights. This examination has shown that, albeit all factors are pertinent to the debate, certain factors are of greater relevance to the question of effective rights implementation. It is also critical to note that these factors are overlapping and interlinked,a perspectivethat accordswith the principlesof systemstheory outlinedin the next section..

A nexus of ideological and political elementsexplain the origins of current legal housing rights. These elements also explain the origins and development of the New Public

Management (NPM) culture that exerts a major effect on contemporary local authority culture, transforming councils into quasi-market organisations. This point is expanded below. Yet political influence- right-to-buyexcepted - hasbeen limited vis-A-visissues of implementation.This itself can be attributableto the presentrelationship between Central and Local Governmentand the primacyafforded to the latter in the regulationof housing managementservice provision, including the administrationof law that governs that provision.

It hasalso been demonstrated that thejudiciary continuesto play an influentialrole in the determinationof individuals'legal rights, a fact clearlyshown in a webof caselaw that also revealsthe autonomyof the judiciary in its wide-ranginginterpretative and discretionary powers. This has been particularlyevident in the area of homelessness.Research has suggested, however, that the importance of judicial decisions in affecting actual administrativepractice varies considerablyamong different councils and is often not consideredby housingpractitioners in the decision-takingprocess (Loveland (1995)).

Remedieshave been examinedto gauge their influence in resPect of rights implementation,categorised as being either of a legal or non-judicialnature. Analysishas suggestedthat remedies- althoughprima facie critical as a meansof protectingtenants'

151 legal rights - are often of liýnitedpractical value. Reasonsfor this were shownto vary but can be attributedprimarily to organisationalpractices that fail to promotethe existenceof remedies,or personalcharacteristics of tenantsthemselves that makethem eitherunable or unwilling to exercisetheir legal rights. In evaluatingthese characteristicspoverty was seen to be significant, its effect often impacting adversely on the exercise of legal rights, for example, people opting not to pursue legal remediesthat incur costs becauseof inability to meet such costs; while tenants' willingness to exercise their legal rights was affected by other considerations,too, of particular import being the dearth of publicity about these rights, low levels of tenanttraining, and limited opportunitiesfor tenantsto accessrights informationgiven the inadequacyof currentlevels of adviceprovision.

Deliberateavoidance by landlordsof their legal obligationsunder the Rent Acts was

briefly It highlighted havebeen examined . was that avoidancetechniques a perennialtheme of research concerning implementation of legal rights in the private sector. This contrasts markedlywith the publichousing sector where avoidance has not featuredin major research.

This issueis, therefore,addressed vvithin the casestudies.

All of the abovefactors are pertinentto rights implementation.Yet researchindicates that the role of local authoritiesis paramountin understandingissues of implementation,a role that requiresthem to implementhousing law through routine administrativework processes.As Allott (1980)so succinctlyavers:

"Administrative discretion runs largely unchecked through the western

bureaucracies...(albeit) thesediscretions are exercisedwithin the law, in terms of

enablingpowers given by somespecific enactment" (p244).

The primaryrole affordedto local authoritiesto implementlegal housing rights suggests, then, that analysisof organisationalpractice is the most fruitful area for locating those

152 factorsmost critical to effectiverights implementation.This is not to deny,of course,the fact that local authoritiesface certain constraintsthat interfere with their capability of ensuringrights areimplemented. Central Government legislative provisions, consolidated by specificfiscal strategies,influence local authorityculture and organisationalwork practice, for example, often starving them of funds. Again, the Government's Best Value strategy - and its concomitantaudit control systems- have contributedto the developmentof the

NPM ethos,an ethosthat - despiteits rhetoric - focuseson the three 'e's of economy, efficiency and effectiveness. In consequence,contemporary local authority culture is stampedby a proliferationof regulatoryperformance management systems, a culture that treatstraining as a cost as opposedto investmentand attempts to modularisework activities into a plethoraof input-outputprocesses.

Yet it would be simplisticto allegethat suchconstraints are intrinsicallyincompatible with the developmentof a rights culture. For the literature review has highlighted that rights implementationvaries amongdifferent councils,for example,an occurrencethat can be attributedin part to a rangeof 'human'factors such as personal knowledge and commitment to rights, factorsthemselves often determinedby a particularindividual's position within the organisationalhierarchy, or an individual'sattitude as mouldedby a variety of influences, environmentaland organisational in nature.

Contemporarylocal authorityorganisations are embroiledin a strugglefor survival,their future direction likely to take the form of housingpartnerships involving both public and privatesector agencies. But centralto the greatBritish housingparadox"' - an excessively regulatedpublic housing sphereco-existing vvith a largely unfetteredhousing market - remainscommitment to the developmentof fights, a commitmentespoused in the corporate

197See Hoggett (1996). 153 policy documentationof local authorityhousing organisations that professadherence to legal and good practice guidanceissued by a range of other agencies. Evaluation of this putative commitment,then, is the focus of Chapters3 and 4 which presentthe findings from fieldwork basedon two Scottishlocal authorities. Prior to carrying out this evaluation, though, it is necessaryto highlight what factors have been selectedfor analysisand the reasonsfor their selection.

Selection of Fieldwork Issues: Rationale

The literatureindicates that the way local authoritiesoperate organisationally is likely to havea major impacton the implementationof rights. Evaluationof the literaturesuggests, however, a gap in current research. For example, court practice has been the subject of detailedscrutiny. Again, organisationshave been analysed to someextent as regardsto individual organisationalpractices, for instance,the provisionof informationand adviceto

homelessness tenants. However, researchhas in general- Loveland's (1995) study of rights excepted- omittedto evaluatesystemically what organisationsdo with direct referenceto how organisationalpractice affects rights implementation.

ChapterI identifiedthe rights selectedfor empiricalexamination. The fights chosenfor analysisare a) the right of accessto personalfiles, b) the rights of the homeless,c) rights of repair and d) securityof tenure. As emphasised,the majorrationale in selectingthese rights is that the literaturereview suggeststhat implementationproblems exist in respectof such rights

Having identifiedlocal authoritypublic sector landlords as the key agentsinvolved in the implementationof legal housingrights, it still remainsto clarify what particularelements of local authorityactivities are mostrelevant to the questionof rightsimplementation. Prior to

154 considering this question, though, it is first necessaryto identify what organisational theory is most pertinent to the analysisof local authority housing managementservices. This is of particular significancegiven that earlier analysisfocussed on the role of local authorities as being agencies theoretically promotional of rights, not organisational theory to elucidate what elementsof organisationalpractice are critical to effectiverights implementation.

Organisationaltheory has been viewed broadly as comprising the four major categories of classicalhuman relations, systemsand contingencytheories"' (Mullins (1996)). Classical theory, on the one hand,focuses on technicalissues, prescribing "how organisationsshould worle' (Handy (1993) p20); whereas human relations theory stressespsychological and human factors as being crucial to understandinghow organisationsfunction (Mullins

(1996)).

Evaluation of systemstheory, however, suggestsa model that is most appropriate for understandinglocal authority organisations. In accordancewith systemstheory, for example, all organisational elements impact on each other, that "nothing can stand on its own or be understood on its own" (Handy (1993) p23). As Mullins (1996) expatiates, rather than perceiving the organisation as comprising separate parts -a methodology associatedwith classicalatomism" - organisationscan only be analysedeffectively by focussingattention on both the externalenvironment as well as the organisationas a whole.

As Mullins (1996) expressesmatters, what is of fundamentalimportance is:

"the total work organisationand the inter-relationshipsof structureand behaviour,

andthe rangeof variableswithin the organisation"(p55).

Applying this model to the analysisof local organisationalpractice provides a useful

198The latter is "best viewed as an extension of the systemapproach" (Mullins (1996) p57). As Mullins cmphasiscs,each of these categoriescan be sub-divided, for instance, the classical school also comprises scientific managementtheory. 199See Meiklc ((1985) p9) for further details. 155 theoretical framework for identifying those factors that, linked systemically, are crucial to

effective service administration, including the implementationof legal housing rights. How

this frameworkis incorporatedwithin fieldworkmethodology is now elucidated.

The literaturereview has indicated that organisationalculture is a key elementin effective

administrative practice (Caimcross et al. (1997)). This applies because organisational cultural values are intendedto permeateall organisationalservice activities. Corporate valuesexpressing adherence to rights implementationshould, prima facie, be incorporated into organisational practice. For this reason corporate organisational policies are first evaluatedin Chapter 3 to analyseCouncil A's commitmentto the promotion of rights.

Actual organisational practice is, supposedly, regulated by policy and procedural documentation, documentationthat itself should espouse commitment to general organisational cultural values. Housing managementpolicies and proceduresare, therefore, examinednext to assessa) to what extentsuch documentation enshrines a rights ethosand b) to identify any "gaps" that might exist between the espoused aims of strategic organisationalcommitments and actual housing documentation.

Policy and proceduraldocumentation is a strongindicator of organisationalcommitment to rights. From a theoretical perspectiveit is also a critical factor in shaping actual work practicesince the administrativefunctions of staff (includingimplementation of legalhousing rights) should conform with policy and procedural requirements. it was extremely important, then, that the thesis addressthe questionof what housing employeeswere actually doing in practicein respectof policy implementation.For this reasonthe thesis evaluatesadministrative practice in respectof four specificrights. The rights chosenfor analysisare a) accessto files, b) homelessness,c) rights of repair,particularly the right to repairand d) securityof tenure. The principalreasons for selectingthese have already been

156 summarisedin Chapter 1. In carrying out this analysis,it is emphasisedthat most research studies in the field of housing have tended to neglect analysis of actual practice vis-A-vis legal rights implementation. The thesis research, therefore, has significant theoretical implications for the field of socio-legal study concerning the implementation of rights in housinglaw. This point is reflectedin the detailedlevel of analysisundertaken in Chapters3 and4, in respectof administrativepractice.

Examination of the above issues sheds light on three themes namely a) whether a discrepancyexists between corporate rights commitmentsand actual housing policy documentation,b) defectsin documentationfrom a rights perspectiveand c) deficienciesin practice in respect of the implementationof four particular rights. In short, analysisof the above matters will elucidate how effectively Councils A and B currently perform in respect of rights implementation. It does not suffice, however, to explain why rights may fail to be implemented effectively. Using systems theory to analyse organisational practice as a

"whole", however, coupled with information gleanedfrom the literature review, it becomes possibleto identify key factors that explainwhy rights implementationis often ineffective within organisations.For purposesof clarification,these factors are assessedunder a range of headingsalbeit - and a defectcommonly mooted by most taxonomists- there is much overlapamong the issuesconcerned. These headings are: communications;workload and methodsof work; performancemanagement and personnel. in carryingout this assessment, analysis of interviewee responsesregarding these topics is provided to aid general understandingof legalhousing rights implementation.

Prior to carrying out the fieldwork, though, it is important to refute a critique of implementationtheory put forward by Malpassand Murie (1994) and alludedto earlier in this Chapter(see p 115). Accordingto thesewriters it is arguablethat:

157 some critiques start from a fundamentallYfalse position. This is the assumption

that the key element determining the nature and effectivenessof housing

managementrelates to staffing and organisationalattributes" (p306).

In their opinionother elementsdrawn from the broadersocietal context are more critical in explaining effective implementation of rights, for instance,financial constraints currently facing local authorities within the NPM, or a depleted housing stock. In support of their argument they cite the latter element as being fundamentalin explaining increasing inability on the part of local authoritiesto re-househomeless applicants. In addition,Malpass and

Murie (1994) stressthat:

"It is inappropriate to imply that formal policy-making or setting of objectives is the

critical element. Equally the formal organisationalarrangements for departmental

responsibilities,decentralisation or staffing and training arrangementsdo not

determinethe way in which policy is translatedinto action"(p292).

This is an important critique and it has alreadybeen highlightedin this thesis that resources(or ratherlack of resources)do affectthe ability of local authoritiesto implement legal rights. With this point there is no theoreticaldisagreement. It is highlighted,for example,in the ScottishExecutive commitment to provide funding to help implementthe new tenants' rights packageunder the Housing(Scotland) Act 2001. In respectof a 110 million packageannounced by Minister for SocialJustice, Jackie Baillie, it was emphasised by Ms Baillie that this funding"will help local authoritiesand RSLs to implementthe new provisions" (ScottishExecutive Press Release, 15 June2001, pl). Yet detailedscrutiny of this position, however, clarifies that - far from soundingthe deathknellto the theory espousedin this thesis- it is in fact supportedby systemstheory. This is now clarified as follows. Firstly, althoughorganisational attributes such as structure,or activitiessuch as

158 do determine implementation training not, per se, effectivenessof rights -a perspective

supported by systems theory - these elements are critical in explaining effective rights

implementationwhen consideredholistically, that is, effectiveimplementation depends on the integration of all elementsinto organisationalpractice.

Secondly, the authors' particular comment regarding training is misleading. It fas, for example, to elaborate on the nature of training, or to acknowledgethat quality training can determinethe policy implementationprocess. As we shallsee shortly in the caseof Council

A, for instance, where no separate written policy on homelessnessexists and council

"policy" is allegedly basedon the Code of Guidance(1997), quality legal training to staff is undoubtedlya critical elementin determiningwhether rights are implemented effectively.

Finally, as Malpassand Murie (1994) emphasise,resources indeed affect the ability of local authoritiesto fiilfil their legal obligations,for instance,lack of housingto provide accommodationfor thoseaccepted as beingstatutorily homeless. Yet simplyto claim that lack of resourcesis paramountin explainingineffective rights implementationcan be challengedon two grounds. Firstly, organisationaladministrative practice remains critical to effective rights implementation irrespective of resource issues. Failure by housing staff to processhomeless applications in accordancewith legalprovisions, for example,may result in unlawful practicethat is detrimentalto tenants'interests, for instance,the refusal(wrongly) of homelessapplicants.

Secondly, as Loveland (1995) illustrates, it is also important to examine resource constraintissues in context. In the Lovelandstudy fieldwork, for example,fOure to meet the needsof homelessapplicants stemmed not simply from lack of housingstock; it also stemmedfrom lack of strategicplanning to consideroptions, for instance,using nomination arrangements with housing associations to secure housing for statutorily homeless

159 applicants. With respect to this latter point, for instance, neither of the two councils assessedin this thesishad incorporatedhomelessness as a strategicelement of nomination arrangementswith the =ny housing associationsoperative in both council areas.

160 Chapter 3: Lezal Rii! hts Implementation - Council A

(Regarding rights support)

"I think Council A is fully signedup to rights and to securingbest value. I think one of the key points, with best value, is about continued improvementand it's about continuing to look at what we do and trying to do better for the future. I think we've made a lot of good progressin servicedevelopment, but recognise that it is a constantprocess of continually trying to enhancethat there be tackled the ... are a number of areasthat will on agenda over the next couple of years to further improve on where we are at the moment."

(CouncilA seniorofficer)

(Regarding quality of homelessnessdecision-taking)

"And a lot of themare rubbish, and I meancomplete nonsense. How they cancome to somedecisions even on commonsense is beyond me.But they do andthey get pastthe areamanager. Area managersare signingthese things. I think that givesyou an ideaof what time is devotedto homelesscases. There isn't a greatdeal of it by the peoplethat shouldbe looking at them. I certainlywouldn't signa letter sayingsomebody is intentionallyhomeless if they are fleeingdomestic violence and I've seenthat actuallybeing signed. Or a singlewoman fleeing domestic violence being given a no priority notification. Now it's clearlyagainst everything that the policy is about."

(CouncilA seniorofficer)

161 Introduction

As the quotations that prefacethis Chapter suggest,staff opinions on the effectivenessof current service delivery vary considerably. And this variation, it is emphasised,occurs acrossall echelonsof the organisationalhierarchy. It is the purposeof this Chapter,then, to evaluate how effectively Council A implements a select range of tenants' rights." This evaluation comprises three key elements as follows: the assessmentof Council A documentation in respect of four specific rights?"; the examination of council practice concerningthese rights involving a total of onehundred and two files henceforthreferred to as casesfor reasonsof confidentiality; and a critical evaluationof Council performance based on a survey carried out during 1999. This evaluation assessesstaff views on specific factorsthat affectrights implementation, namely communications; workload and methods of work; performancemanagement; and personnelmatters. Prior to undertaking this assessment,a brief summaryof the four legalrights whose implementation is to be evaluated is provided.

Legal Rights Provisions

This section summarisesbriefly the main provisions of the legal rights that are assessedin

Chapters3 and 4 in respectof implementationissues. This provides the reader with guidanceon relevantlegal provisionsto enableeasy comparison between legal requirements and actual organisationalpractice. The rights coveredare accessto files, homelessness, repairsand securityof tenure.

200Council A refersto a Scottishlocal authoritythat hasbeen anonymised for reasonsof confidentiality. The sameissues arc evaluatedin the caseof CouncilB in the following Chapter. 201Chapter 1 identifiedthe key rights asaccess to files, homelessness,repairs and securityof tenure,as well asproviding reasonsfor their selection(See pp 21-23). 162 a) Accessto Files

The right to accessfiles is now governed by the Data Protection Act 1998. Prior to this legislation coming into effect, two distinct pieces of legislation that the 1998 Act repealed were relevant. Accessingdata held on computersystems, for instance,was regulatedby the

Data Protection Act 1984, whereas access entitlement to manual information held by local authorities was regulated by the Access to Personal Files Act 1987 and the Access to

Personal Files (Housing) (Scotland) Regulations 1992 (SI 1852). In view of the fact that empiricalwork carried out within this thesis focussed on the earlier (and still extant) legislation, in particular on the legal rights to accessingmanual information, it is the previous law that is now highlighted followed by a brief summaryof the main changes.

The Data Protection Act 1984 regulated accessby service users in respect of personal information processedelectronically. Data denotesinformation relating to a living individual who can be identifiedfrom that information. The Act stipulatedeight principlesand lays down obligations on data users,for instance,data must be processedfairly and lawfully (The

First Principle),or not disclosedin any way incompatiblewith the purposefor which it is held (The Third Principle) (Pounder et al (1987)).

Landlords affected by the Accessto PersonalFiles Regulationsincluded local authorities, developmentcorporations and ScottishHomes. "' The regulationsapplied, not just to existingtenants of theselandlords, but also former tenantsor applicantsfor a tenancy. As soon as requestedby the tenant,the landlordhad to advisethe tenantsin writing whether therewere recordsheld containingpersonal information which was accessibleand allowing the tenantto accessthat information.Requests made by the tenanthad to be in wnting and

sufficientlydetailed to allow the landlordto establishthe tenant'sidentity andlocate relevant

202Housing associations were not directlyaffected, albeit ScottishHomes standards require the former to takecognisance of the regulationsin their generalhousing management activities, for example, allocations. 163 personalinformation. In addition,the landlordwas entitledto requesta fee, not exceeding

110, to accompanyany request for information. The tenant was legally entitled to access infonnationin six weeks,or eightweeks where third partieswere involved.

Restricted access could apply, however, in specific situations as follows: personal informationrelating to anotherperson(s); mattersof health;or local authority discretion where it was suspectedthat allowing accessmight pose a serioushealth risk.203 The

Regulationsalso allowedfor informationto be refused,for instance,where it was held to assist in the prevention or detection of a crime (or the apprehensionor prosecution of offenders) and giving accessmight prejudice the case.

A tenant also had the right to have any local authority decision reviewed within twenty eight daysof hinVherbeing notified of the local authoritydecision. This review canbe dealt with by either memberswho took no part in the original decisionor before a full council meeting."'

The Data Protection Act 1998 cameinto force on I March 2000. As O'Carroll (2000B) notes,the Act hasthree chief effects,namely a) to increasethe dutiesof thosewho process personaldata, b) to increasethe rightsof the datasubjects and c) to extendthe datacovered by the legislation. The principalaim of the new law is to protect the right to privacy of individualcitizens against organisational misuse of personaldata. (See pp 180-181following for further commenton the importanceof accessingrights. )

Accessrestrictions are modifiedin situationswhere third partiesgive consent,or the healthauthority authorisesrelease of medicalinformation. On the otherhand, access to personalinformation by another individual is not restrictedif the only personlikely to be identifiedis a memberof the tenant'sfamily, a healthprofessional, or an employeeof the housingauthority. 204Scottish Office Circular (33/1992)provides comprehensive guidance to local authoritieson how to interpretand utilise the legislativeprovisions. For instance,it is recommendedthat informationdenied shouldbe restrictedto 'exceptional' circumstances.Again, the possiblefee of L10 that canbe leviedto coveradministrative costs involved in accessingdata is, in the view of the ScottishOffice, to be consideredin the light of prevalentpoverty levels among council tenants. 164 b) Homelessness"

The main statutory provisions in terms of local authorities obligations in respect of homelessnessare examinedby focusingon what hasbeen termed the 'four hurdles', ie the stagesinvolved in processingan application to ascertaina local authority's legal obligation regarding provision of housing."' i) Homelessness/Threatenedwith Homelessness

Local authoritiesowe certainduties to personswho arehomeless within the meaningof the Housing (Scotland) Act 1987. In accordance with this Act a person is homeless if she/he has no accommodationin Scotland,England or Wales."' And a personis to be treatedas havingno accommodationif thereis no accommodationwhich the person(along with other people who normally residewith her/him) either i) is entitled to occupy by virtue of an interestin it or by virtue of a court order, ii) has a right or permission(either expressor implied) to occupy, or iii) occupies as a residenceby virtue of any enactment or rule of law.208

Secondly,someone may be homelesseven if she/hehas accommodationin five specific situations..: entry cannotbe secured; occupationis likely to lead to either violence (or threatsof violence)from someother occupantor someonewho previouslyresided with the applicant; the accommodationis moveableand there is no suitablesite, for example,no site for caravans;the accommodationis both statutorilyovercrowded and potentiallyinjurious to the occupant's health; or it would not be reasonableto continue to occupy the

205The crisis concerninghomelessness alluded to in ChapterI is reflectedin statisticaldata. Leckie (1995) hasnoted the official UnitedNations statistics that assertthat morethan onebillion personsworld-wide do not haveadequate housing and overone hundred million haveno homeat all. 206The HousingAct 1996introduced major changes to homelessnesslegislation in Englandand Wales. As indicated,though, the thesisconcentrates solely on the legislationthat currentlyapplies to Scotland. Major changesthat will be introducedby the Housing(Scotland) Act 2001are notedat the endof this section. The Housing(Scotland) Act 1987,s 24 (1). '0' The Housing(Scotland) Act 1987,s 24 (2) (a) to (c). 2' The Housing(Scotland) Act 1987,s 24 (3) (a) to (d). 165 accommodation.

Threatenedwith homelessnessalso has a statutorydefinition to the effectthat a personis deemedto be threatenedwith homelessnesswhen homelessnessis likely to occur within

210 twenty eight days.

Wherelocal authoritiesare satisfiedthat an applicantis either homelessor threatened with homelessness,they are legally obliged to inquire further as to whether the applicant has a priority need and - if so - whether the person becamehomeless or threatenedwith homelessnessintentionally. "' ii) Priorijy Need

Local authoritiesowe a duty to ensurethat accommodationis availablefor personswho are homelessand have a priority need. The Act lays down a list of categories of persons deemedto be in priority need. These categoriesare": any pregnant woman, regardlessof the stage of her pregnancyor her age, together with anyonewho normally resides with her or might reasonablybe expectedto reside with her; a person with whom dependentchildren are living or might reasonablybe expectedto live; a personwho hasbeen made homeless as a result of an emergencysuch as fire or flood or any other disaster; a personwho is vulnerableas a result of old age,mental illness or mentalhandicap (learning disability) or physical disability, or other special reason; and young people under 21 who were previouslylooked after by a local authorityunder the Children(Scotland) Act 1995,or were in the care of a local authority, or subjectto a supervisionrequirement under the Lo-ckl

Work (Scotland) Act 1968 at school leaving age or later the most recent addition in 1997.

21' The Housing (Scotland) Act 1987, s 24 (4). 211 The Housing (Scotland) Act 1987, s 28 (2) (a) and (b). 212The Housing (Scotland) Act 1987, Part 11,s 25 (1) (a)-(d), as amendedby the HomelessPersons (Priority Need) (Scotland) Order 1997, S1 1997/3049. 166 iii) Intentionality

Assuming that an applicant satisfies the above criteria, the local authority may then consider whether the person became homeless(or threatened with homelessness) intentionally."' If a person with priority need is intentionally homelessthe local authority duty is reduced to a duty to provide temporary accommodation. Deciding whether a person is intentionally homelessinvolves severalmore specific questions: was there a deliberate act or omissionas a result of which there was a loss of existingaccommodation? Was the accommodationactually available to the applicantat the time of the act? Was it reasonable for the personto residethere?

The Code of Guidancealso stressesthat evenwhere a personhas been considered to have becomehomeless intentionally, he/she should not be considered"to be intentionally homeless for all time" (Scottish Office (1997) p44). Nor should local authorities apply blanket restrictionsas they must considerall circumstancesin respectof each individual application. Thus, any "blanket resolution" that treats whole groups such as rent arrears casesas being automatically intentionally homelessis clearly unlawful iv) Referral of Applications

The duty to securehousing for a homelessapplicant who has priority need and is unintentionallyhomeless may be transferredto anotherlocal authority provided specific conditionsof referralare satisfied."' Theseconditions are a) that the applicantdoesn't have a local connectionwith the authorityto whom she/hehas applied, b) the applicanthas a local connectionwith anotherauthority and c) there is no risk of domesticviolence in the area where the applicanthas a local connection."' It is emphasised,however, that the act of referralto anotherauthority is purelydiscretionary. Local connectionmay be establishedon

213 The Housing (Scotland) Act 1987, s26 (1) - (4). 214The Housing (Scotland) Act 1987, s33 (1) 215 The Housing (Scotland) Act 1987 s 33 (2). 167 a number of grounds such as normal residencein the area, either past or current, or employmentin the area."' v) Local Authority Duties to Inform and Assist Applicants

Duties to applicants under the legislation are varied. Housing authorities must advise applicants in writing of their decision after completion of inquiries."' Reasonsmust be given where the local authority makesan adversedecision in respectof the application."' With regard to the nature of assistanceto be provided, this varies depending on the result of inquiries, that is, whether the applicantis homeless/threatenedwith homelessness,is in priority need,is intentionallyhomeless, and whether the conditionsfor referralare satisfied.

Advice and appropriateassistance only will be offered in those situationswhere the applicantis homelessbut not in priority need,or wherethe applicantbecame threatened with homelessnessintentionally. "' In caseswhere the applicantis believedto be both homeless and to have a priority need, on the other hand, the local authority is legally obliged to provide temporary accommodation pending completion of inquiries."' Temporary accommodationmust also be providedin situationswhere local authoritiesare exploring whether a local connectionexists elsewhere,"' or in caseswhere the local authority has determinedthat an applicantis homelessand in priority needbut intentionallyhomeless. "'

As Robsonand Poustie (1995) note, such accommodation should be providedfor a lengthof time sufficientto enablethe applicantto secureother accommodation. "' Finally,in the case of homelessapplicants who are in priority needbut not intentionallyhomeless (unless the

'16 The Housing (Scotland) Act 1987, s 27 (1) (a) to (d) 217 The Housing (Scotland) Act 1987, s 30 (1) - (5). 218 The Housing (Scotland) Act 1987, s 30 and s 36. 219The Housing (Scotland) Act 1987 31 (4) 31 (3) (b). ,s and s 2'0 The Housing (Scotland) Act 1 87, s 29 (1) 221The Housing (Scotland) Act 1987, s 34 (1) 222The Housing (Scotland) Act 1 78, s 31 (3). 223 The Code of Guidance (Scottish Office (1997)) reconunendsa period of at least 28 days (par 10-12). 168 duty is to be transferred to another authority), the authority must ensure that

is 221 The the accommodation made available. actual nature of accommodationoffered, though, has generated intense debate. The House of Lords' decision in the case of Rv

London Borough of Brent ex parle Awua"-' C'Avvuacase") that the accommodationdid not have to be either permanentor settled overruled earlier court decisionsthat had said permanent accommodation should be given. Despite this decision, though, the Code of

Guidancerecommends that local authoritiesshould seek to implementlong-term solutions to reducerisks of further homelessnessrecurring, thus alwaysseeking to re-househomeless applicantsin permanentaccommodation with full security of tenure.

It is worth noting at this point changescontained in the Housing (Scotland) Act 2001 and the implications of the Human Rights Act 1998 for homelessness.

The main changescontained in the Housing (Scotland) Act 2001 are as follows: firstly, a new requirement on local authorities to prepare,and subn-dtto Scottish Ministers, a strategy for preventing and alleviating homelessnessin their areas."'

Secondly,local authoritiesmust ensurethat adviceand informationservices concerning homelessnessare availablefree of charge,although this duty could be undertakenby other agencies."'

Thirdly, local authoritieswill havean interimduty to accommodateanyone they believe maybe homelessirrespective of priority needissues. "'

Fourthly,local authoritieswill be empoweredto requestother registeredsocial landlords to provide a Scottish securetenancy for an unintentionallyhomeless person in priority

224The Housing (Scotland) Act 1987, s 31 (2). 225Rv Brent London Borough Council, expAwua (1994) 26 HLR 539, CA 226 The Housing (Scotland) Act 2001, s (1) - (6) 227The Housing (Scotland) Act 2001, s2 (1) & (2). m The Housing (Scotland) Act 2001.,s3 (2). 169 need."'

Fifthly, the Act enablesScottish Ministers to make regulations establishingminimum rights for homelesspeople living in hostels."'

Finally,the Act will reversethe effectsofAwau. 231

It is, as yet, too soon to evaluatethe effects of the new Human Rights Act 1998 upon housinglaw; this is particularlytrue giventhe complexityof the legislation.What shouldbe stressed,though, is that the Convention on Human Rights doesn't guaranteea specific right to housing, although Article 8 does guaranteesindividuals with the right to respect for home life, privacy, the home and correspondence(O'Carroll (2000A)). c) Repairs

As Hirnsworth (1994) notes there are three main sources which govem a landlord's repair obligationstoward tenants, namely common law, statuteand the tenancyagreement. i) CommonLaw

At commonlaw, landlordsare required to providea housein a habitableand tenantable condition(Himsworth (1994)). In determiningthe latter, eachsituation must be assessedon its merits,taking accountof both safetyand physical condition of the property.

"9 The Housing (Scotland) Act 200 1, s5 (1). 230The Housing (Scotland) Act 2 01, s7 (1). 231The Housing (Scotland) Act 2001, s3 (3). 232The main provisions are contained in the Housing (Scotland) Act 1987, Schedule 10, as amendedby the Housing (Scotland) Act 1988, Schedule8. Other relevant Acts include the Occupiers Liabilily (Scotland) Act 1960 and the Environment Act 1995. This section will not examine building regulations, details of which are contained in relevant legislation and regulations. SeeHamilton et al (1993) for Rifther information. Nor will it deal with managementissues such as the urgent funding required to provide new houses,or repair existing stock which one estimate puts at L21 billion in respectof public sector houses (Park (1998)). 170 ii) StatUt6233

Certain principal statutory repair obligationsare incumbentupon landlords irrespective of tenure. Firstly, it is an implied term of the leaseof every house let at a rent below 1300 per week that it must be "reasonablyfit for humanhabitation" when the tenancy begins

(Himsworth (1994)).234 The level of rent limit means that nearly all rented houses are covered. Regard must be had to the relevantbuilding regulationsin adjudging habitability.

is landlords keep in The secondobligation - also an implied term of the lease- that repair the structureand exterior of the dwellinghouse (including drains, gutters, and externalpipes

(as well as to keep in repair and proper working order installationsfor the supply of water, gas and electricity, and for spacefor water heating. This obligation is limited to leasesof less than sevenyears duration and granted on or after July 3 1962."' However, it does not cover defects causedby the tenant,"" defects causedby damagesuch as fire, "' nor fittings and fixtures removableby the tenant, for instance,an electric fire that can be easily unplugged (Brown (1987))."'

A further principal statutory repair obligationthat affects only specifiedlandlords, includinglocal authorities,is the right-to-repairscheme that becameeffective on I October

1994 and appliesto all securetenants except housing associationsecure tenants. "' A secure tenant is entitled to have a qualifying repair carried out up to a level of 1250. Repairs involve things that mayjeopardise the health,safety or securityof tenantsif not remedied quickly. The list of qualifying repairs provides for statutory timescalesto remedy defects,

233The Housing(Scotland) Act 1987,Schedule 10 asamended by the Housing(Scotland) Act 1988, Schedule8. Landlordrepairing obligations in respectof the newScottish secure tenancy will be to ensure that the house,both at the commencementand throughout the tenancy,is wind andwatertight and kept reasonablyfit for humanhabitation (Housing (Scotland) Act 2001,Schedule 4, (a) and (b). 234The Landlord'sRepairing Obligations (Specified Rent) (Scotland) (No 2) Order 1988,Sl 1988/2155. 235The Housing(Scotland) Act 1987 Schedule10, para 4. 236The Housing(Scotland) Act 1987,Schedule 10, para 3(2) (a). 237The Housing(Scotland) Act 1987,Schedule 10, para 3(2) (b). 238The Housing(Scotland) Act 1987 Schedule10, para 3(2) (c). 239Secure Tenants (Right to Repair)(Scotland) Regulations 1994, Sl 1994/1046. 171 althoughlandlords may choose to operateshorter response repair times. The maximumtime beginson the first working day (public holidays,weekends excluded) after the date the repairwas first notifiedto the landlord,or wherethe landlordinspects the house,the actual date of inspection.To meettargets, councils must maintaina list of contractors,including the usualcontractor, prepared to carryout qualifyingrepairs.

Maximumtime will be suspendedwhen circumstancesof an exceptionalnature exist which preventrepairs being remediedsuch as inclementweather. The landlord is legally obliged,however, to advisethe securetenant that maximumtime hasbeen suspended.

Wherethe previousprocedures have not beenstarted by the last day of the maximum time, the securetenant may instruct another listed contractor to carry out the work. "O The council, in turn, must advisethe other contractor of the maximumnumber of days allowed to do the repair. Significantly, the securetenant is entitled to a flat rate payment of LIO where the usual contractor fails to fulfil the qualifying repair by the last &ZYof the maximum time.

Payment should be madeautomatically by the landlord. Where a secondcontractor has been instructed by the tenants, an additional 12 a day for every working day the repair remains outstanding, can be made up to a maximum of 150. The schemedoes not apply in certain situations, for example,where the tenant fails to provide access,either for an inspection or the actual repair work, provided the tenant has been given reasonableopportunity to give access. iii) The Tenancy Agreement

As the main contractual document between the landlord and tenant, the tenancy agreement is, arguably, extremely important in the development of rights and obligations

240This will not applywhere exercising the right would infringe uponterms of otherguaranteed work or materialsupply. For example,a guaranteeby onecontractor to maintaincentral heating systems for a fixed period. Tenantsmay choose not to opt for anothercontractor. In suchcases LIO compensationonly would be paid. 172 betweenthe parties. It canbe used,for instance,to extendtenants' rights in termsof both common law and statutory rights, although it cannot be used as a vehicle for contracting out of statutoryobligations such as the landlord'srepair obligations. d) Securityof Tenure "' A securetenancy can only be legally terminatedin a number of prescribedways. These areas follows:

9 by the death of the tenant (and there is no qualifying successor)

a where the legal successordeclines the tenancy

e by written agreementbetween landlord and tenant

* wherethe local authorityoperates the abandonmentprocedure

9 by an orderfor recoveryof possession

* by 4 weeks'notice by the tenantto the landlord.

Of particular note here is recovery of possession: the local authority can recover possessionof a securetenancy on any of sixteen possiblegrounds. "' These grounds are of two types,namely discretionaryor mandatory."'

In orderto recoverpossession under grounds one to seven,the local authoritymust show that a) they havea relevantground and b) that it is reasonableto recoverpossession. "' In respectof groundseight to sixteen,in additionto establishingthe relevantground, the local authority must also ensurethat suitablealternative accommodation is availablefor the householdevicted on the datethe order takeseffect. "' In thesecases reasonableness need

24'The Housing(Scotland) Act 1987,s 46. Thesecan be addedto if we considerother ways a secure tenancycan end, ic throughright-to-buy, rent-to-mortgagc, stock transfers and tenants'choice. Methods for tcrminatinga Scottishsecure tenancy arc similarwith the main exceptionbeing when the landlord takesaction to convertthe tenancyto a shortScottish secure tenancy (Housing (Scotland) Act 20011s35). 242The Housing(Scotland) Act 1987,Schedule 3, Part I. 243Aka conductor managementgrounds. Conduct grounds are I to 7, managementgrounds 8 to 16. 244See Brown (1991)for full discussionof reasonableness. 245Suitable alternative accommodation is definedby the Housing(Scotland) Act 1987 Schedule3, Part 11. 173 not be shownby the landlordwith the exceptionof ground sixteen.Suitable alternative accommodation entails that households evicted for management grounds vAll receive another securetenancy that is essentially'like for like' with the previous tenancy.

Council A: A Profile246

Council A was formed on 1 April 1996 as a result of Local Government restructuring that involved the merger of previous district council authorities. Council A is controlled by the Labour Party, labour councillors constituting a large majority. Council housing stock represents40% of the total stock in the areaof which the majority tenureform is that of owner occupation (54%). The exact number of housesowned by Council A is not given to preserveanonymity.

Fieldworkwas carriedout in two areaoffices, one coveringa predorninantlyrural area, the other predominantlyurban. This enablesthe assessmentto take note of any geographical variations that might exist in practice. The two area offices jointly manageover 13,000 units or over 25% of the total Council A housing stock. The stock comprisesa variety of house typeswith flatted propertiesbeing the predominantform. The performanceof all housing managementfunctions is delegatedto the areaoffices.

Housing staff carry out generic working practices that cover all major housing managementfunctions including homelessness with the exceptionof maintenancewhich falls within the ren-ftof specialistmaintenance officers. A total of nineteenhousing staff, or c3% of all housing staff were interviewed. This figure includesa substantialproportion of

CouncilA seniorofficers, as well as over 10%of areahousing office staff in respectof the two officesthat were surveyed.The majorityof staff interviewedat areaoffice level were

246See "Reference List" for sourcesof information. 174 housing and maintenanceofficers as opposedto senior officers. One Council A lawyer was also interviewed, as well as two tenants. Analysis of tenant views is given in the concluding section of the thesis (See pp 321-326).

Organisational Culture

Many managementtheorists assumethat 'strong' cultures imbued with specific values

"contribute to exceptionallevels of organisationalperformance" (Legge (1995)

p 190). Petersand Watchman(1982), for example,assert categorically that:

"Without exception,the dominanceand coherence of cultureproved to be an

essentialquality of the excellentcompanies! ' (p75).

Again, and as highlighted by Caimcrosset al (1997) in the literature review, commitment to rights implementationis most explicit in those labour-controlledcouncils that espouse adherenceto the principles of citizenship.

Prima facie, then, cultural values professedby an organisationwill be extremely pertinent to rights implementationissues. This assumptionwill be subjectto detailedscrutiny shortly, however,after considerationof CouncilA's culturaltypology. This is extremelyimportant given the critique of ideal typologies in Chapter 2. Council A affirms that its primary aim is to becomea model authority that, in developingits strategy,it will strive to ensurethat servicequality is paramountand that citizenshipvalues are integralto this strategy. As the

CouncilA Vision affirms:

"Council A will be a placewhere people's well-being, particularly those most

disadvantaged,will be successfullypromoted, and where the partneragencies,

working closelywith communities,will developemployment opportunities and high-

qualityhousing, health, education, and leisure and support services which are

175 sustainableand accessible to all" (CouncilA CommunityPlan).

Examples of quality initiatives developedby Council A include Investors in People and the Chartermarkin the housingdepartment (Council A BestValue).

In line with these commitments,Council A emphasisesthat a major corporate priority is to ensureservices are deliveredwith a "customer/citizenfocue', a processthat requiresfull and regular public consultation on quality, level and accessibilityof servicesto be provided.

Further, Council A's Corporate Plan emphasisesthat "the provision of information to the public will be integralto the cultureand working" of CouncilA serviceadministration. To fulfil corporateobjectives, Council A confirmsits intentionto providecomprehensive staff training programmesto equip staff with the relevant skills and knowledge to ensure quality serviceprovision, service that meetsboth legaland good practicerequirements.

Commitmentto principles of best value and citizenshipis endorsed,too, in documentation produced by Council A housing department. The departmental Strategic

ServicesPlan states, for instance,that strategichousing objectives include the provisionof a

"responsive,local housingmanagement service which representsbest valuefor all Council tenantsand othersin needof housingadvice" while the CustomerCharter Leaflet in the departmentalInduction Pack promisesto "provide you (the tenant) with accurateand relevantinformation and advice"and "train staff to ensurethey are efficientand effectivein their dealingswith you". CouncilA's HousingPlan confirmsthat adviceand information provided should incorporaterelevant legal advice. In its commitmentto addressing homelessness,for instance,the HousingPlan stresses the needto "ensurethe availabilityof good quality informationand advice" for peoplewho are "homelessor threatenedwith homelessness".

It appears,then, that CouncilA's culturalvalues are supportiveof rights promotion. But

176 of what relevanceare corporate policy commitmentsto the actual implementation of legal rights? It hasso far beenassumed, for examplethat:

"there is a positive correlation betweenorganisational perfonnance and the strength

of an organisation'sculture "(Beaumont (1993) p43).

has been Yet such an assumption subjectto academicscrutiny. On the one hand - and a point emphasisedin Chapter 2- the concept "culture" is "elusive and not easily measured", nor can it be applied to "all organisationsin all circumstances"(Beaumont (1993) p430).

And, of greatersignificance perhaps, is the fact that the relationshipbetween culture and actual organisational performance is "not necessarily monotic" (Legge (1995) pl. 90).

Particular cultural values may not impact uniformly on all administrative processes, for example,a point that is extremelypertinent if local authoritiesfail to developa rights-based strategy basedon systemsorganisational methodology. Malpassand Murie (1994) reinforce this particularcriticism when they notethat "policiesfail for differentreasone' (p23 1), and- by way of extrapolation- "sometimesperformance fails to match intentionsbecause the objectivesare not sharedby those responsiblefor implementation,or becausethey are unawareof what the objectivesare " (p231).

Indeed,information from other sourceswithin Council A suggeststhat organisational commitmentsmay not havebeen translated into practice. Effectivecustomer care services dependon effective"staff care". Althoughthis maybe consideredas simplya truism, it is important to highlight this principle as failure to adhereto it can adverselyaffect rights implementation,for instance,lack of investmentin staff trainingresulting in unlawful service delivery. And, as we shall seein the fieldwork it is a principlethat is often forgotten in organisationalpractice. As Herman (1999) writes:

"If managementtreats employees well, there's a pretty good chancethe employees

177 will treat the customers well. If managementtreats employeesbadly, expect the

samekind of treatmentto be extendedto customers"(p77).

Consideration of organisational practice suggests,however, that not all bodes well.

Feedback from the annual staff conference in 1999, for instance, reveals that 56% of

respondentsbelieved that employeesare not valued."' In describingthis processcertain

staff alluded to the careerist motivations of senior managementstaff and their failure to

addresshigh stresslevels currently facing housingofficers and other junior staff. In addition,

it was felt by specific individuals that managementsupport was inadequatein terms of the

volume of organisationalchanges occurring, in particular:

"more extensive training is required at grassroots level and clearer lines of

communicationare needed internally".

In evaluating Council A's corporate policy commitments to rights, therefore, it is

necessaryat this point to expresscaution pending analysis of other organisationalfactors to

which the thesisnow turns.

Policies and Documentation

Effective transmissionof cultural valuesinto practiceby an organisation.requires a systematic approach that "consists of a formal and an informal part" (Buchanan and

Huczynski ((1997) p522). The formal elementsrequire the establishmentof clear policies and procedures,as well as effectivecommunications and training strategies to ensurestaff are fully

211 aware of strategic organisational goalS. Clear policies and related procedural documentationare of particularimport, then,insofar as it is by meansof suchdocumentation

247Discussions with the CouncilA officer responsiblefor re-organisationof the staff conferencehas confirmedverbally in September2000 that concernsarc to be addressedby two developments,namely a) the staff developmentreview process and b) closureof officesfor training. 249informal cultural transmissioninclude, inter alia, organisationaldress codes or typesof office layoutsuch as open-plan(Buchanan and Huczynski(1997)). 178 that organisational.core valuesare communicatedto employeesdirectly involved in service administration.Indeed, failure to incorporaterelevant legal rights informationvAthifi this documentationis likely to result in staff ignoranceof theserights - particularly relevant where staff receive inadequatetraining concerninglegal housing rights - and, as a consequence,to causeineffective rights implementation. As Malpassand Murie (1994) highlight:

"The generalpoint here is that the study of implementationrequires considerationof

policy instrumentsbecause of the extent to which the instrumentsdeployed are likely

to reflect the natureof the policy objectivesand the way in which implementation

proceeds" (p226).

Recent literature review studieshave suggestedthat acrossthe local authority sector as a

whole policy documentationhas improved (Atkinson et al (2000); Scott et al. (2001)). In

their major research survey, for example, Scott et al (2001) point out that "higher

proportions of the post re-organisation authorities were providing information in almost

every category" (p27). Of particular interest from a rights perspective is that all local

authoritiesapparently provide their tenantswith informationconcerning the responsibilities

of landlordand tenant. And possessionof suchinformation is arguablyan importantelement

in assistingtenants to exercisetheir rights. Yet, andas noted in Chapter2, it is necessaryto

treat surveyfindings cautiously. For example,as the researchersemphasise, the surveydid

not seekto evaluatethe quality of informationprovided by landlordsto their tenants. To

quote:

"We did not ask landlordsto supplycopies of their informationto tenantsso thereis

no information on the quality of information provided" (Scott et al (2001) p27).

This sectionnow turns,then, to assessthe extentto which fights infonnationis contained

within council documentationin respect of the rights of accessto files, homelessness,rights

179 of repair and security of tenure."' Prior to undertaking this assessment,however, it is important to note some general points that may assist the understanding of policy developmentin Council A. "O Firstly, Council A was createdby merging a number of local authoritiesthat existed pre-organisation,a situation that has causeddifficulties in the development of unified policies and procedures,difficulties arising partly from the scale of changebut also from the political complexitiesassociated with change.251

Secondly, housing policies of Council A are expectedto confonn with strategic policy corporate objectives. In addressingthe fights issuesunder examination,therefore, reference is made to corporate matters, where appropriate,in order to pinpoint any anomaliesexisting betweencorporate and specific departmental policy documentation.

Thirdly, policies have been developedby different officers dependenton the particular subjectmatter. Internal consistency and cohesion - or lack of it - maywell thenbe an issue that will require further assessment.It is also emphasisedthat councillors' role in the developmentof the policies under considerationin this thesishas been minimal. This confirmsthe point madeby Loveland(1995) in Chapter2 to the effect that the role of electedmembers in policy developmentvaries among councils. a) Accessto PersonalFiles

Issuesconcerning the protectionof data are, as O'Carroll (2001B) highlights,"very important to the functions of many housing providers in the public sector and RSL movement"(p35). This arisesin view of the largevolume of data held by local authority landlords. O'Carroll then focuseson the need for housing professionalsto adhereto

249 Most homelesspeople are not, of course,tenants and do not, as such, possesslegal rights enjoyed by securetenants. The purpose of including homelessnessin this section is to assesshow adequately local authorities meet their legal obligations in tackling homelessness. 230 The points made here, it should be noted, apply also in the casestudy following that involves Council B. 251 A point perhaps illustrated by the developmentof Council A's allocation policy only from early 2000 and Council B's allocation policy from late 1999. 180 legislative provisions in housing managementpractice. And, to reiterate a point noted in

Chapter 1, from a rights perspectiveit is important to tenantsin the public sector "to be able to gain accessto informationconcerning them which is held by their landlord" (11imsworth

(1994) p97). Instances of situations when this right could be important are as follows.

Firstly, the right to access personal information enables applicants seeking rehousing to evaluate the accuracy of information held on file. This is of import since inaccurate information could adverselyaffect an applicant's right to housing, for instance,in the caseof homelessnessapplications.

Secondly,accessing files infonnationcan be critical in thosesituations where the local authority is seekingto repossessthe property. The opportunity to evaluateinfonnation held on file by the landlordcan be an importantpart of establishinga defenceto the landlord's action. In this respectMitchell (1995) notes the interestingpoint that:

"It is not unheardof for decreesto be grantedin such circumstancesafter the

landlord's representativeat first calling has simply mixed up two files?" (p2l).

Thirdly, affording individualsthe right to accesspersonal infonnation provides an important check againstarbitrary actionsby state authorities,as well as againstpossible maladrninistrationconcerning the use of suchdata. Indeed,this point hasbeen specifically made by First Minister Henry McLeish who stated:

46 we believe that the rights of the individual must be protected, and again

forthcoming legislationwill put this into practice. There is no more secure

foundationfor the protectionof individualrights than accessto inflannation,and the

legislationwe proposeenvisages a powerful and independentScottish Information

Commissioner,and assuredaccess to informationheld by a wide range of public

252Glasgow Districl Council v Lindsqv,Glasgow Sheriff Court,24 June1986, unreported. 181 bodies." "'

Considerationof CouncilA's written documentationto both staff andtenants, however, does not reflect the priority that should be afforded to this particular right as little informationis providedin respectof the legalright to accessfiles. It is not mentionedin the council's allocationpolicy, for instance,and is similarlyomitted in the caseof the major policies of estate managementand rent arrears. Indeed, the only staff information concerningthis right is providedin an internalbriefing note that has,however, apparently not beendisseminated to frontlineStaff 254

But informationprovided to tenantsabout this right is evenmore scant. Thereare no departmental leaflets concerning the right, for example,nor is it mentioned in the Tenants

Information Pack that is provided to tenants. But most worrying perhapsis the deletion of the relevant clausefrom Council A's tenancyagreement that is allegedlybased on the Mosta

Agreement."' Thus, the Council A tenancy agreementspecifically omits direct referenceto the relevant legal regulationsthat govern accessrights to personalinformation, although this information is embeddedin the Mosta Agreement."' b) Homelessness

With regard to the question of homelessness,it is important to note that Council A has no written homelessnesspolicy. Homeless applicants (if qualifying) are placed within the

A's statutory homeless list that forms one of six main waiting list categories. Council

allocations policy is based on a "List plus Date of Application Scheme"with "a percentage

A of the houseswhich become available in each area7'being allocated to each list (Council

253An addressto academicsat a GlasgowUniversity Conference held on 20 August2001 to discussthe core aims andvalues of the ScottishExecutive. ... This is dealtwith later. (Seep 231). 255The MostaSecure Tenancy Agreement was produced by the CharteredInstitute of Housingin 1998. Paragraph8.2 dealswith the accessto files rights information. Dearthof publicity undoubtedlya root causeof why only six requestsby tenantsto accesstheir files had beenreceived since Local Governmentrc-organisation. 182 allocationspolicy). "' An internalappeal system exists, with appealsbeing made in the first instance to the divisional housing manager and thereafter to the director of housing and property services. In dealing with homelessapplicants, the allocations policy states that it will take account of the Scottish Office Code of Guidance(1997) on homelessness,as well as the applicant's choice of area. The policy also addsthat, in addition to satisfying the legal criteriaie the "four hurdlee',the council:

44mustalso have decidedthat the offer of a council tenancyis the best way of

carrying out our duty".

With regardto informationprovided to homelessapplicants, consideration of existing documentation reveals that for homelessapplicants such information is scant, consisting of some leaflets only in addition to snippets of information about homelessnesscontained within the Council A's allocationspolicy whoserules the latter is statutorily requiredto publish.

In the absenceof relevant documentation,then, implementationof legal rights is largely dependenton other commitmentsbeing in place,for instance,the key homelessnesspriority containedin the council'shousing plan of ensuringthat good qualityinformation and advice networks exists and - integral to the process- ensuringthat there is "ongoing staff training on current legislation and good practice guidelines". To theseissues the thesiswill return.

Rights of Repair

Council A's written documentationconcerning repairs obligations in generaland the right-to-repair schemein particular appear,prima facie, to be more informative. The council'stenancy agreement, for instance,follows the Mosta documentalmost verbatim as far as landlordrepair obligationsare concernedand also includesinformation on the right-

Although the policy blandlyadds, without clarification,that "We maydisregard this rule in appropriate cases,to makebest use of the housingstock. 183 to-repairscheme, including the tenant'spossible entitlement to compensation,as well as the common law right enjoyedby tenantsto effect repairs and - provided proper proceduresare adhered to - to "withhold rent" accordingly. The statutory provisions of the landlord's repairingobligations are also included,as is the Mosta clauserelating to effectingrepairs due to any dampness."' Again, in respectof the Tenants'Information Pack, the correct information about the legal right is provided to tenantswhen it is stated :

"This schemegives you the right to get another contractor in and claim financial

compensationif we do not carryout certainpriority repairswithin our time limit. We

will let you know whenthe job hasgone over its time limit".

Yet considerationof organisationalprocedural documentation concerning the right-to- repair schemereveals important gaps in the provision of information. It is not mentioned in the current maintenancepolicy, for example,although the new draft repairs procedures manualcontains a sectionon right-to-repair.Nor is it mentionedin the estatemanagement proceduresthat do include sectionson a) securetenants' rights to carry out improvements and make alterations, and b) their entitlement (in specified situations) to receive compensation.But the mostglaring anomaly is in respectof informationprovided to tenants at the point of actually reporting repairs to the council, especially important in that many tenants may not digest information provided to them in the form of handbooksand information packs. For, although Council A provides secure tenants with written confirmationwhenever a right-to-repair"qualifying repair" has been reported, including

258The Mostaclause relating to replacingheafing systems that are causingcondensation dampness, however,is omittedbecause of costreasons. The level of capitalallocations available for housing investment,for example,has halved since 1990/91. Also, the council'sability to investin its housing stockhas been constrained since 1996/97 by the requirementto use75% of councilhouse sales receipts to repaydebt (Council A HousingService Plan). 259Council A TenantsPack. It is alsomentioned very briefly in the council's"Customer Charter" booklet and a new departmentalrepairs leaflet published in 2000. This latter notesthat maintenancestaff wflI be ableto explainwhat repairsare covered- but - as is explainedin the next section- this is problematic given lack of knowledgeamong staff aboutthis right. 184 details about the right-to-repairscheme, and alternativecontractors available to effect repairs, information provided is erroneousinsofar as it makes claming compensation dependenton utilisationof an alternativecontractor, whereas in terms of substantivelaw, the tenant shouldreceive the minimumcompensation payment ie 110, where the original contractorfails to completethe repairtimescale laid down for eachof the eligiblestatutory

"qualifying repairs"." d) Security of Tenure

Securityof tenureissues are dealt with in two principaldocuments, namely the rent

26' Each these arrearsprocedures manual and the estatemanagement procedures manual . of documentsis now assessedin turn. i) Rent ArrearsProcedures Manual

Council A's rent arrearspolicy and proceduresmanual. became effective from April

1996.262The policy is extremely detailed and outlines a broad range of activities to be

issuing undertaken prior to seeking eviction for rent arrears. These include of standard letters, carrying out home visits and tenant interviews, as well as procedures to be implemented from service of Notice of Proceedings to court stage and beyond ie after decreefor evictionhas been granted.

As part of the policy's preventativeapproach to evictions,maximisation of benefit entitlementis pursued,as are a range of repaymentmethods to clear debts, including establishingof arrearsdirect paymentsvia the BenefitsAgency. Non-housingsanctions that are applied to stimulaterepayments include suspensionof applicationsfor garages,or refusing to accept tenants onto the home contentsinsurance scheme; while housing

260As the letter to the tenant states: "When a delay occurs and an alternative contractor is used to carry out the work, the tenant will be compensatedfor the 'inconvenience"'. 261These documentscontain the policy principles and modus operandi of theseprinciples. 262As with the estatemanagement policy, this policy was agreedduring the shadowyear preceding re-organisation and resulted from a harmonisation of predecessorcouncil policies. 185 sanctions include refusing mutual exchange applications, or tenancy transfer requests, sanctionsthat could possibly be challengedif applicationsare lodged via the right-to-Eissign route, thereby opening up the opportunity of appealvia the sheriff court where refusals of suchapplications are subjectto the test of "reasonableness"."' In addition,the policy also highlights the need to liaise with other council departmentssuch as social work, as well as the utilisation of debt counselling agenciesto assist tenants in financial hardship. In this sense,the policy appearsto include the key principles of sound arrears control and debt management that the sheriff should take cognisance of in the cletermination of the reasonablenessof the councilseeking eviction.

Assessingactual council practice in respectof eviction actions against relevant statutory provisions indicates, though, that unlawful practice is occurring. In granting a court order for eviction,for instance,the order appointsa date for recoveryof possessionand hasthe effect of ending the tenancy and empoweringthe landlord to recover possessionat that date as per the Housing (Scotland) Act 1987, s 48 (4) (a) & (b). And, as Nfitchell (1995) clarifies:

"Thereis only oneform of decreespecified by the summarycause rules for recovery

of possession,and only onedate is specifiedthereW'11 (p30).

Thus it is the court, not the housingauthority, which decidesthe dateof terminationof the tenancy.Further, it is importantto notethat if the tenantremains in occupationafter the dateof the decreeand pays rent, then a newtenancy is automaticallycreated.

Considerationof casesin Council A where decreesfor eviction have been granted, however,reveals that theseare not implementedeither by or evenclose to the datespecified

263Important changes to allocationrules will applyto Scottishsecure tenants and affect certain sanctions. Liabilities suchas rent arrearsof lessthan onemonth arc to be disregarded.for example,as arc liabilities wherearrangements are in placeto repaythe debtand sucharrangements have been maintained for three months(Housing (Scotland) Act 2001. s 10 (4) (a) and (b). 264 Form U3. 186 in the court order. Indeed,it is commonpractice within Council A to hold decreesand implementthem for up to oneyear after the datespecified in the decreeextract even though the Council continuesto acceptrent both in respectof current rent and paymenttowards the arrears. ii) Estate Management Procedures Manual

Council A's estate managementpolicy and proceduresdocument also becameeffective from April 1996. The policy document contains a set of principles and a number of objectivesthat, in respectof anti-socialbehaviour, attempt to initiate effectiveremedies for tackling neighbourdisputes and anti-socialbehaviour (see below). The documentalso sets staff targets for carrying out duties, for example,answering correspondence in ten working days, contacting complainant of anti-social behaviour within three working days and a written decisionwithin twenty days (Council A Housing Plan).

Remediesstipulated in the policy documentfor dealingwith anti-socialbehaviour are comprehensiveand includeboth managementand legal remedies..Examples of the former are: the utilisation of an inter-agencyapproach to tackling problems (police, social work etc); appointmentof professionalwitnesses/investigators to collate evidence; and offering mediationservices where voluntarily chosen by tenants. And, in respectof legal remedies, examplescited include the main remediesdiscussed in Chapter 2 such as implement, interdict, nuisance,Asbo's and eviction(as a last resort). In addition,the documentlists a variety of laws that canbe usedfor specificpurposes, for instance,the legislationthat deals with maliciousletters or correspondence."'

Despiteacknowledgement of the rangeof issuesencompassed by Council A's policy document,three specific concernscan be noted. Firstly, the policy omits referenceto

265The Post Off icc Act 1953. sI1 (1). 187 important actions for dealing with anti-social behaviour such as serving Notice of

Proceedingsto seeka managementtransfer (compulsorytransfer). "

Secondly, the information provided to staff regarding possible legal remediesis scant and, on occasion, misleading. In the table contained in the policy that lists possible legal powers "to deal with common nuisancee',for example,the Public Order Act 1986 is cited as being relevant in dealing with the criminal offence of racial harassment.Yet, whilst this point is true, this Act relates to England and Wales only and not in Scotland in 1996 where no specific criminal offence of racial harassmentexisted. The Crime and Disorder Act 1998. s33 and s96, has, however, introduced the offences of racial aggravated harassmentand racial aggravationinto Scotland.

Finally, written information provided to tenants regarding security of tenure issues- in relation to both rent arrearsand anti-socialactions - is little developedsave for advising tenants to contact the local Citizens Advice Bureau or their lawyer. It should be ernphasised,though, that offering such advicetends not to happenprior to court action being considered.Indeed, advising tenants to contactadvisors etc happensgenerally only prior to the first calling in court. It is also worth stressingthat tenants are not provided automatically with alternative advice agency contacts such as the Shelter Housing Law

Service.

Summary

With respectto the four specificlegal rights under review, Council A documentationhas notabledefects that may leadto both staff andtenant ignorance of legal rights and housing law. Accessto files informationis extremelylimited, for example,and the relevantclause

266The Housing(Scotland) Act 1987,Schedule 3, ground8. An evictionorder must be grantedby the sheriff if the groundis satisficdand the councilprovides suitable alternative accommodation, to be availablewhen the court ordertakes effect. 188 concerning this right has been excisedftom the model Mosta Tenancy Agreement allegedly adoptedby the council. Nor has Council A developeda clear policy in respectof the important area of homelessness,albeit that certainprocedures are in place. Information about the right-to-repairscheme, on the other hand,is more substantialbut this positive developmentis somewhatdiminished by inconsistencyof information provided to both staff and tenants. Information in respect of security of tenure issuesis arguably more developed in line with legislative requirements,especially the professed adherenceto satisfying both ground(s) for possessionand reasonablenesscriteria prior to seeking an eviction. As with the other rights, though, tenantsreceive little information from Council A about this right.

Implementation of Rights

As indicatedin the literaturereview, work practiceshave been regarded as an important area for research. In their study of housing managementperformance, for instance,Bines et al (1993) highlighted that:

"While therewas somecorrelation between landlord performance in eachof the core

managementtasks, few landlordswere eitherhigh or low performersfor all of them.

Many landlords were doing well on sometasks but lesswell on others" (p 143).

Again, Scott et al (2001) argue that landlord performance appearsto have improved since the last major Scottish housing managementresearch survey (Adler et al (1995)).

With referenceto homelessness,for instance,Scott et al (2001)note:

"... the advicecontained in the 1997Code of guidanceon Homelessnessappeared to

267 havebeen largely accepted by councils"(p 120).

Evaluationof this research,however, indicates that - unlike the Loveland(1995) study

267One example cited by the authors relates to the fact that provision of advice seemsto have been "given an increasingly high profile" (Scott ct al (2001) p60). 189 on homelessness- previous Scottish studies have not analysedin detail the actual implementation practices of local authorities. And, as Loveland (1995) stresses, it is essentialto evaluateimplementation issues in context, indeedthat a variety of contexts "play an important role in explainingthe 'gap' betweenlegal form and empirical reality" (p3). It is emphasised,of course, that this perspective is compatible with the systems theoretical framework of organisational analysis currently being applied. In line with Loveland's position, then, evaluation of legal rights implementationoccurring within the organisational. administrative process must take place as part of strategic organisational analysis that considersthe inter-relationship of all key organisationalprocesses including work methods, performancemanagement systems, communications and personnelmatters. To these issues the thesis will return. First, though, Council A work practices in respect of the four rights issuesidentified in ChapterI will be assessedin context. Theserights are a) accessto files, b) homelessness,c) rights of repair and d) securityof tenure. The relativelygreater time afforded to analysisof theseissues in this sectionreflects the innovativenature of this researchwithin the field of socio-legalstudies.

This sectionexamines how effectivelyCouncil A implementsthe aforementionedlegal rights in the day to day operationof housingmanagement, that is, a) accessto files, b) homelessness,c) rights-of-repair,and d) securityof tenure." This is carried out by the I evaluation of working practices as gleaned from assessment of tenancy files and procedural documentation,as well as feedbackreceived from interviewees.It shouldbe emphasised that the focal point of the researchis to identifypractices that eitherare or maybe in conflict with existing statutory provisions, as opposedto identification of practicesthat are merely

268The latter issueis concernedmainly with the legalityof repossessionactions raised by CouncilA staff in respectof arrearsor anti-socialbehaviour. 190 PAG

NUlVI RIN-G

AS ORIGINAL ninecases.

Table 2: Household Profiles of RefusedHomelessness Applicants

Category of Households

Single Single Partners Female& Male & Partners& Total

Female(%) Male (%) (%) Child (%) Child (%) Child (%)

5 (10.2) j 27 (55.1) 1 3 (6.1) 1 7 (14.3) 1 2(4.1) 5(10.2) 49

(Source: Council A Housing Office nies)

The above figures show that almost two thirds of applicants refused comprise single males(55.1 %) or single females(10.2%), which reflects national statisticaltrends.

GeneralPattems

Turning now to considerationof generalpatterns vis-i-vis homelessnessapplications, the

following points are noted. Firstly, the particular cases assessedappear to have been

processedby housing officers, a practice that complies with good practice."' Yet advice

providedorally by seniorofficers suggeststhe housingofficers often "vef' applicantsand

refuse applications- particularly those lodged by single personswho appearhave no priority

form."' It is indicated initial - without completingan application also that screeningof

homelessapplicants by receptionstaff occurs,albeit more sporadically."' As one senior

officer states:

"My own opinion of Council A is that that (ie screening)happens far too often. Do

you know what I meanby first screening...where the personcomes to the front desk

280Scottish Office (1997), par 5.2. 281Unfortunately, the frequency of this practice is unrecordedbut is believed to be common. 282A practice disparagedby the Code of Guidance, par 5.3 (Scottish Office (1997)) and one currently under review by Council A. This review is currently assessingthree options, namely i) to retain generic working practices, ii) to create specialist posts of homelessofficers working within area offices and iii) to centralisc working practices. 196 and they are virtually told they wouldn't qualify in terms of homelesslegislation so

here's a list of bed and breakfast, away you go. Now I'm aware that that that

happensall too often in terms of single men and singlewomen in Council A! '.

This is thenfollowed by the explanationthat :

"I think that housingofficers feel under pressurea hell of a lot and that they

sometimes perceive a homelessapplication as taking twenty minutes/half an hour

with somebodythat they feel they can't allocateto that particularperson because

they feel in their own mind that they wouldn't qualify anywayand there are maybe

callsfor themto answer."

Secondly, examination of the forty nine applicationsreveals that most applications are refused at the homelessnessor priority need stagewith very few casesprogressing towards assessmentin respect of either intentionality or local connection. The actual refusal figures are as follows; nineteen (or 38.8%) at homelessness(or threatened with homelessness) stage; twenty four (or 49%) at priority need stage; six (or 12.2%) at intentionality stage; andin no casedid the councilattempt to transfera duty to rehouseto anotherlandlord.

CouncilA homelessnesspractice is now assessedagainst legal provisions by referenceto the following criteria: inquiries; homelessness;priority need; intentionality; local connection;notification (including adverse decisions); and advice provided to applicants. i) Inquiries

Local authoritiesare requiredto carry out sufficientlydetailed inquiries to ensure compliancewith law. CouncilA hasimplemented specific procedures, therefore, to striveto ensurethat housingstaff carry out sufficientinquiries, in particularto ensurethat they ask the relevantquestions to establishwhether applicants can surmount the "four hurdles". This is doneprocedurally by havinga standardform decisionguide that asksdetailed questions in

197 resPectof each of the "four hurdles".

Yet, considerationof currentcouncil practice reveals deficiencies. The standardform used to collate informationto satisfy the inquiry process,for instance,is often either incompleteor remainsuncompleted by housingstaff. "' Again, and as part of standardised council procedure, housing staff are required to complete an investigation report. But considerationof councilhomelessness files revealsthat oftenno inquirieswere recorded. In

Case sixty nine, for instance,in which the male applicant hasjust been releasedfrom prison and may require specialistadvice, the notificationletter is sent on the samedate as the applicationis lodgedand no checksseem to havebeen carried out to assesscase details. It shouldalso be stressedthat, in none of thesecases has the decisionguide that leadsstaff through the 'four hurdles' processbeen completed. Data is not available,therefore, to confirmwhether or not staff hada soundbasis for their decisions. ii) Homelessness

Considerationof the nineteencases refused on the basisof not beinghomeless reveals some interesting points."' Firstly, and arguably attributable in part to staff failure to utilise the decisionguide, occasionallystaff make erroneousdecisions in terms of homelessness status. Thus,in Case89, in which a joint tenantis refusedaccess to his homeby his father on account of apparentinability to residetogether, the applicantis deemedto be not homelesssimply becausehe holds a joint tenancy. However, an applicantwould be homelessas a matter of law if he had accommodationbut occupationof it would probably leadto violence. Yet while the housingofficer apparentlyaccepted the applicant'sstatement that he would be at risk of violenceif he returned,this officer determinedthat he was not homeless.

283This is particularlyevident in the housingoffice that is of a predominantlyurban status. Reasonsfor the divergencein practiceare not known. 281only oneof the nineteencases. it is noted,involved a "threatenedwith homelessness"situation. 198 Secondly,in determiningwhether an applicantis homeless,it is necessaryto ascertainif it is reasonablefor the applicant to continue to occupy her/his accommodation. Examination of the Council A files, though, suggestssome concerns on this point, now illustrated by referenceto threecases. "' In Case79, for example,the applicantis advisedthat her own accommodationis deemedavailable despite the applicant'sclaim of potentialviolence from a neighbour. The decisionappears to be basedsolely on one police report that states:

"we haveno evidenceto substantiatea claimfrom Ms... that X would causeher

anydanger if shereturned to her homeaddrese'.. "'

Lack of police evidenceby itself, however,does not invalidatethe applicant'sclaim, althoughno further checksseem to havebeen carried out, for example,checks with other neighboursor other departmentssuch as social work. Failure to contact social work, in particular, seemsto be a major omission, particularly given the fact that the applicant has- two childrenand local authorityobligations towards their welfaremay be an issue." This might be thought to be a failure to carry out adequateinquiries as required by section 28 of the Act.

The secondCase involves Case 84 wherethe applicantsclaim that they are unableto reside in their own tenancy becauseof neighbour problems and fear of violence. Again, though,there was no assessmentof whetherit is reasonableto occupythe accommodation, of particularconcern given the "evidence"supplied by the local healthcentre with reference to oneof the applicants:

"She recentlytook an overdose. I believethat the problemshe is havingwith her

neighboursis contributingto her mentalstate and her healthwould definitelybenefit

Indeed, lack of assessmentof reasonablenessseems to involve the majority of cases,particularly where single people arc involved (cg Cases62,67,86,92,97). 286Strathclyde Police correspondenceto Council A, 7/4/99. 287That is, obligations towards "children in need". Children (Scotland) Act 1995, Part II. 199 from her beingre-housed". "

This caseis also illuminatingin that the decisionwas takenthat the applicantswere not homelessbecause a) they hadreturned home and b) hadnotified Council A that "they would rather stay with relatives" than accepttemporary accommodationoffered by Council A. Yet again, though, returninghome does not entail that the accommodationis reasonableto occupy, nor does refusal of temporary accommodationoffered.

The third and final Caserelates to Case97. In this Casea single parent is deemednot to be homeless(or threatenedwith homelessness)because she can residewith her parents.

Considerationof the details underpinningthis Case,though, is most revealing. For instance, confirmation that the applicant can remain in the house is given by the applicant's mother.

Thereis no considerationgiven, however, to the questionas to whetherit is reasonablefor the womanand her child to stayin the accommodation,despite the applicantstating that she could no longerreside there, the reasonablenessissue of particularrelevance here given the applicant'sclaim that there is family discordthat is causingtension. Again, it is not clear whether this decisionmay have had somethingto do with the applicant'sprevious case historygleaned from the housingofficer's written comments:

"Ms... lefl accommodationat... with rent arrears. Shehad beenadvised when she

appliedunder homelesspersons the last time to make an effort and clear arrears.

Ms... alsobeen charged with possessionon drugs.""' iii) Priority Need

The Code of Guidanceprovides particular guidance on those personswho rnight be classifiedas being in priority needon accountof vulnerabilityfor somespecial reason, for example,young people previously looked after by a local authority,young peopleat risk, or

288Health Centre correspondence to Council A, 30/9/99. 289Extremely interesting since arrears, although possibly relevant at intentionality stage considerations, should not be taken into account when assessing homelessness status. 200 women suffering (or fearful oD violence. And case law has indicated that, in determining

vulnerability, it is not simply a questionof whether someoneis at great risk, but whether - on

account of that person's particular difficulties - she/heis in comparison to other homeless

people at more risk of harm and less able to cope with homelessness(EEmsworth (1994)). "'

In addition, in reaching its decisionthe local authority must ensurethat its decisionsdo not

conflict with the principles ofjudicial review.

Prior to carrying out the assessment of those applications refused on the basis of not

satisfying priority need, evaluation of the twenty four applications refused reveals the

following patterns. Firstly, of the twenty four cases,single matescomprise twenty two cases

and single femalestwo. "' Secondly, the reason cited for non-priority status in all casesis

that of non-vulnerability.Thirdly, decisionstaken are based on informationprovided in the

completed application form and the actual interview at which staff assesseach application on

its merits.

Turning now to assessthe priority need decisionstaken, examinationof the files suggests

legal that - basedon the data available- the majority of refusalsappear to conformwith

principles. Yet detailed scrutiny of individual applicationssuggest that staff practicesmay be

at odds with legislative requirements. In Case 70, for example, the applicant is notified of

failure to satisfy priority need statusbecause of non-vulnerability. Yet in this particular case,

priority needstatus may be arguedbased on the fact that the applicant,a separatedparent,

undertakescare responsibilities for an autisticdependent child for approximatelythree to

290Rv WaveneyDistrict Council,exp Bowers[1983] QB 238 at 244, CA; WilsonvNithsdale District Council 1992SLT 1131. In theBowers case Lord JusticeWaller held that vulnerabilityshould not be treatedliterally but as denotingsituations where someone is "lessable to fendfor oneselfso that injury or detrimentwould resultwhen a lessvulnerable man will be ableto copewithout harmfid effects"(Robson and Poustie(1996). 291As is notedshortly, one of thesecases appears to havebeen categorised erroneously. 201 four days per week, the extent of actual care crucial to decisionsconcerning priority. "' In

Vagliviello, for instance,the court overturneda previousdecision to the effect that the father was not in priority need when a child spent exactly half of the week with each of the motherand father.293 On the other handit hasbeen held that parentalagreement to satisfy accessarrangements for children that dependson housing being available does not oblige

councilsto provideaccommodation. "'

Apart from the possibility of securing priority need status on the basis of dependent

children, the housing officer also failed to take cognisanceof the adequacyof the existing

accommodationin which the child currently lives when "cared for" by the applicant. In this

particular case,for instance,the applicant has been requestedto vacate a relative's home (by

that relative) on account of the latter's inability to cope with the behaviour of the applicant's

autistic child. As such, it seemsfeasible to suggestthat a homelessnessfinding based on the

inadequacy of existing accommodation to house the autistic child may have been

appropriate, a finding that necessitatesthe granting of priority need status."'

Case 93 appearsto representanother instanceof possible mistaken categorisation. In

this particular case,for example,the applicantis notified that he does not meet priority need

status despite the fact that the application submitted included the applicant's partner and

dependentchild, both of whom might be expectedto reside with the applicant. The decision

was based on the fact that the child is living with grandparentsand not with the parents.

This point, it is emphasised,is specificallycovered by the Codeof Guidancethat statesthat

children don't need to be living with the applicantat the time the applicantapplies for

housing since children "may be living temporarily with other relatives because of the

... Indeed,the existenceof a dependentchild who might reasonablybe expectedto residewith the applicant is actuallyacknowledged in the decisionguide by the housingofficer. 293Rv LondonBorough ofLambeth, ex p Vagliviello(1990) 22 HLR 392, CA. 294Rv Port TalbotBorough Council, exp McCarthy(1991) 23 HLR 207. 295Rv LambethLondon Borough, exp Bodunrin(1992) 23 BLR 647. 202 applicant's homelessness"."' In addition, the file reveals no inquiry being carried out to assessif any other impediment to them having custody existed, for example, contacting

SocialWork to discusschild protectionmatters.

In assessingvulnerability housing staff are expected to "react to applications with a degreeof commonsense where there is primafacie evidenceof vulnerability"(Robson and

Poustie (1996)). And this approachis indeed reflected in generalfile documentation. Thus, in Case82, the housing officer cites the reasonsfor not granting priority statusas follows:

"Singleperson with no dependentchildren and (he) did not appearvulnerable during

intervieiV'.

But evaluation of particular practices suggeststhat there may be breach of legislative provisions. In Case96, for example,a single male is deemednot to be in priority need status on accountof non-vulnerability.Yet considerationof the file detailssuggest that further checks are required t0justify such a decision.For the applicant is a 'rough sleeper' who - in the words of the officer concerned:

44 was in a very poor state physically and his clothes and personalhygiene were of

a poor standard".

And, as the officer later opines:

"Mr alsoadds that he hasnot eatensince Sunday or Mondayof this week andhad

only 2 cansof superlager today. (I think he had more alcoholthan that - however-

due to Mr... poor state of healthand yearsof alcohol abuse- it would not take

muchalcohol to sethim off agaitf'."'

ScottishOffice (1997),paragraph 7.2. Case93 is alsointeresting insofar as the file documentation indicatesanother possible agenda behind the spuriousreasoning that led to the decision. In this case,for instance,the applicanthad previously had a tenancyand, at interviewstage, was advised by the housing officer as follows: "Mr... wasshown a copyof his original Missivewith his nameon it and advisedhe wasintentional homeless as lie hadabandoned this tenancyon... and left rent arrearsof L466.67and had rechargeablercpairs of 017". 297An interestingexample too of staffjudgementalism. 203 In discussingthis issuewith one senior officer, it was acknowledgedthat wrong decisions often occurbecause staff:

"have clearly not carried out the necessaryinquiries and have incorrectly come to the

wrong decisioif'.

In teasing out the numbersinvolved, the sameofficer suggestedthat:

"Possibly the majority have been correct. But there is still quite a level of incorrect

decisions. Now Council A deals with about 2000 homelesscases per year and I

wouldn't be able to put a definite figure on it. But certainly a much higher number

thanI would haveexpected have been proved to be clearlythe wrong decisions."

Failure to decide in accordancewith the principles ofjudicial review is also illustrated in

Case 102, another case that involves a single male rough steeper. As per Bowers, it is critical to considervulnerability comparatively; and to quote Lord Prosserin Wilson :

"The comparisonmust in my view be with some assumedaverage or normal or run-

of-the mill homelesspersons".

Yet examination of the applicant's file details reveals that the applicant has learning difficulties and substanceabuse problems, factors that may satisfy vulnerability criteria, particularly if corroborated by medical support. But here again council practice is lacking.

For, asthe Codeof Guidancerecommends in respectof issuesconcerning learning disability, the homelessnessofficer "should enlistthe help of the healthboard, local CommunityNHS

Trust, or the social work department as appropriate" (p4o). And, in respect of Case 102, none of these things were tried."' iv) intentionality

Intentionalityis the legal test introducedat the original HousingBill report stageto

298 OP Cit. 299It shouldbe notedin passingthat the fouicasesconsidered represent over 16%of all casesrefused at priority needstage and maysignify groundsfor concerngiven the volumeof refusalswithin CouncilA. 204 soften concerns of certain councils and NT's that individuals tnight voluntarily leave accommodation in order to queue-jump existing housing list applicants. Statistics show, however, that reasons for homelessnessoccurring are usually genuine with 33% of applicants becoming homeless following domestic dispute and a further 33% because fiiends/relatives are no longer being able to accommodate."' Intentionality is also an extremely complicated test and, as noted earlier, involves three specific elements, all of which must be satisfiedto justify a decisionof intentionality, the onus of proof lying with the local authority."'

Turning now to consider the Council A sample,examination of the files shows that six

below cases or just over 12% of all casesincluded a decision on intentionality. Table 3 provides the reason(s)given by the council for reachingan intentionalitydecision and legal hasbeen whether- on the basisof written documentationavailable - the test applied

correctly.

Table 3: Area Office Intentionality Refusals.

Case Applicant Status Reason(s) for Intentionality No 57 Single Parent Gave up SecureAccommodation 61 Pre nant Woman Gave up SecureAccommodation & Owed Arrears 72 Couple with child Gave up SecureAccommodation 73 Single Income Sufficient to maintain Mortgage 75 Single Parent Gave up SecureAccommodation 76 Single Eviction ftom Hostel

(Source: Council A Housing Office Files)

In assessingissues rising from Table 3, the following points are made. Firstly,

informationrecorded on file tendsto be incompleteand it is impossibleto know whether

" Scottish Office (1997), paragraph 3.6. 301The three elementsbeing as follows: deliberate act or omission which results in homelessness;it must be reasonablefor the applicant to continue to occupy the accommodation; and the applicant must have been aware of all relevant facts before taking the deliberate action. 205 staff have evaluatedcases in accordancewith the legal test. Failureto considerthe three elements,of course, leavesCouncil A open to chargesof having acted unlawfully, although this is not to say that decisionswould necessarilyhave been different if the test had been properly applied. Three casesserve to illustrate this point

In Case 76, the tenant lost accommodationbecause of continuous breach of tenancy conditions, that is drinking in a hostel, despite having been warned on five separate occasionsregarding such behaviour.302 Yet scrutiny of availablefile documentationsuggests that the person has learning disabilities. The authority, however, failed to evaluatethe level of disability and the person's ability to understandthe consequencesof his actions.

In Case57, the female applicant and children gave up secureaccommodation because her husbandhad beenposted to the Falklandsand she requiredto be closerto her family in

Scotland for support. In -addition, it was noted that the nearest shopping facilities were several miles distant. Yet neither of these factors was taken into account in assessing intentionalhomelessness.

Finally, in Case61, that involves a pregnantwoman temporarily lodging with her mother, reasons for termination of a previous secure tenancy were not properly explored. Of particular concern in this caseis the housing officer's failure to take into account a message received from the applicant's previous authority to the effect that the property was given up so that the applicantcould "escapefrom local youths"."' No assessmentof the risk to the applicant,though, was carried out by the authority regardingthe reasonablenessof her remainingin her tenancy. Reasonsfor the apparentdeficiencies in respectof intentionality were discussedwith senior policy officers. According to the latter, discrepanciesstemmed

302In this case,the applicantwas deemed to be intentionallyhomeless simply because of the breachwithout assessingthe problemin the light of the intentionalitycriteria. 303In this Caserent arrearsare citedas an additionalfactor of intentionalitydespite their irrelevancesince the tenancywas not repossessedon the basisof rent lawfully due. 206 largely from ignorance. To cite one of theseofficers:

"There is not enough investigation. There are not enough inquiries being made into

cases.And to be perfectly frank there are a number of officers dealing with homeless

caseswho wouldn't know how to determinewhat an intentionally homelessapplicant

is

Ignorance itself was attributed to lack of appropriate training and inadequatesupport.

Decentralisationof servicedelivery was also deemedto be a critical factor:

"I think Council A- can I speak off the cuff here - went too far too fast in

decentralisingthe service without ensuring the back up was there and the training

was on the level required by the staff. I really felt that the training given to staff was

in no way comprehensive." v) Referral of Applications

Local connectionfactors may be taken into account by local authoritiesin the determination of statutory re-housing obligations and, where no local connection exists, re- housing obligations to homelesspersons can be transferred, in certain circumstances,to other councilauthorities.

In termsof the CouncilA sample,no applicationswere refusedat the referralstage. It shouldbe noted that, in respectof homelessnesspractice, housing officers did state that applicantswho did not meet the local connectioncriteria would be referredback to the appropriateauthority, althoughthis was not necessarilyapplied in areasof low demand, applicantsbeing offered a discretionarylet in such circumstances."' vi) Notification

Local authoritiesare legally requiredto notify applicants,on completionof

304That is, the homelessnessapplication is not acceptedunder statutory provisions, but re-housingtakes placevia the Waiting List. 207 inquiries, of their decisionin writing. And, where the decision is unfavourableto the

applicant, to give adequate reasons that are intelligible and address substantive

matters raisedby each case."' Thus, correspondenceshould illustrate that the

council had consideredall relevantmatters and provide clear reasonsas to why an

application has been rejected,thus enablingthe applicant to assessthe challengeand

raise a challengeif desired."'

Examination of Council A homelessnesspractice indicates,prima facie, compliancewith legal requirements. Decision letters are both issued and retained in the appropriate

homelessnessfile, for instance,and are issuedtimeously, that is, within the twenty eight day

period recommendedby the Code of Guidance."'

Again, notificationletters comprisea variety of standardletters that cite both a) the

(or appropriate hurdles stage at which the application is refused and b) provide a reason

reasons)why the applicationhas been refused.

Finally, notification letters contain appropriate information concerning a) the offer of

temporary accommodation,for instance,in Case73 involving a priority need applicant who

is intentionallyhomeless, b) accessto furtheradvice by contactingan appropriateofficer (eg

Cases65 & 77), and c) the applicant's right to appealusing the internal Council A appeal

system(eg Cases57 & 79).

Yet scrutinyof the contentof specificnotification letters suggestsconcerns Fegarding

both the clarity and the adequacyof decision-making.Thus, in Cases56 and 58 that are

refused at priority need stage,the reasoncited statessimply:

"There are no circumstancesevident within your applicationthat could suggest

... Housing (Scotland ) Act 1987, s 30. WestminsterCity Council v Great Portland Estates PLC [1985] AC 66 1, CA; Rv Northampton Borough Council, ex p Carpenter (1992) 25 HLR 349. 306Rv Islington Borough Council, exp Hinds (1994) 27 BLR 65; Rv WandsworthBorough Council, exp Oteng (1994) 26 HLR 413, CA. 307Scottish Office (1997) paragraph 12.5. 208 vulnerability".

This is potentially problematic since failure to advise applicants of why they are not considered as being vulnerable may adversely affect their rights, for example, by not providing applicantswith sufficient information to lodge an appeal.

Again, and with reference to the intentionality in Case 61, it is that intentional 4-7 stated homelessnesshas occurred due to voluntary termination of tenancy and, to quote the officer's words verbatim, "the council considersit reasonablefor you to continue to occupy that accommodation". Yet, this decision appearssomewhat inadequate given the important issuesinvolving the applicant having to leave her tenancyto "escapefrom local youths". vii) Advice

Local authorities are legally required to provide applicants who fail to qualify for re- housingwith appropriateadvice to enablethe person(s)to obtainaccommodation. " Advice is not legally defined and thus regard should be had to the Code of Guidance that recommendsthat advice should be comprehensive,incorporating information that will help obtain housing and prevent future homelessnessoccurring. "' Assessmentof Council A practice, however, indicates discrepancieson occasion with Code of Practice recommendations,recommendations that council policy purportedly adheresto.

With regardto the extentand qualityof adviceprovided, for example,current practices canbe deficient. "' Thus,in Case59, the unsuccessful applicant is providedsolely with a list of private rented sectoraccommodation, while in Case83 the applicant(a rough sleeper) was advisedto "call back at the counter". Again, and with referenceto specific appeal

308The Housing (Scotland)-Act 1987, s 31 (3) & (4). Special provisions apply in the caseof persons subject to immigration control. For details seethe Scottish Office (1997), Chapter 14. The local authority is also empoweredto provide general advice on other council services under the Local Government (Scotland) Act 1973. s 88. 309 Scottish Office (1997), Chapter 11. 310Exceptions do exist, though, such as Case87 in which the applicant is advised of a range of housing options, including housing associations,private rented sector, and the waiting list. 209 rights, whilst the standarddocumentation offers a point of contact to furnish advice, it fails to adviseunsuccessful applicants of other possibleremedies such asjudicial review (legal) or the Ombudsman(non-legal). Case75 is perhapsparticularly revealing insofar as it involves an applicant who has apparently trýissedthe internal appeals system timescale for hearing appeals and that an internal appeal is consequentlytime barred. Yet the letter from the housing manager to the applicant mentions only an invitation to discuss "re-housing options"; and there is no mention of either of the aboveremedies.

Inadequateadvice also appearsto be given in respect of a number of legal matters. In

Case89, for instance,the applicantis considerednot to be homelessas he currentlyholds a joint securetenancy with his father.It is the advicegiven in respectof the joint tenancythat is illuminating,indicative of lack of trainingwhen the housingofficer advisesthat: "He could terminatehis part of the tenancyand then pursuea houseon the subtenantslisf'. In law, however,a securetenancy can only be endedin a prescribednumber of waysand onejoint tenant cannotend a securetenancy on his/herown (Robson& Halliday (1998)), although this will not applyin the caseof the new Scottishsecure tenancy. "'

The Codeof Guidancestresses the importanceof preventinghomelessness, for example, by providingadvice to applicantsliving in the privaterented sector. Case85 is of interest, then, sincethe housingofficer hasprovided no adviceabout an apparentlyunlawful eviction that hasoccurred after the tenantleft his househaving received the following invalidNotice to Quit that lacksspecified information. "'

311Housing (Scotland) Act 1987, s 46 in conjunction with s 82 (definition of tenant). The Housing Act 2001 13, joint Scottish tenant to terminate her/his interest in the (Scotland) ,s will enablea secure tenancy without affecting the interest of the otherjoint tenant. 312A Notice to Quit to be valid must contain certain information and, in the caseof Assured Tenancies, accord with the Assured Tenancies (Notices to Quit PrescribedInformation) (Scotland) Regulations 1988, SI 1988/2067. 210 "Dear Sir/Madam

I am formally giving you notice of the termination of the leasing agreement

betweenMr (landlord) Nfiss (tenant)for ...... and ...... the property at the above address.Termination will be at 12.00noon on 30 April 1999.

Yours sincerely

Mr.... "

Finally, consideration of individual cases reveals major gaps in legal knowledge concerning various issues. With regard to Cases79 and 92, for example, homelessness applications involving children are processedwithout any consideration of local authority obligations towards children in needunder the Children (Scotland) Act 1995. While in Case

55, on the other hand, the officer has noted in the homelessnessdecision guide that a cohabitee has occupancy rights, whereas occupancyrights are not automatically conferred on cohabitees. In acknowledging knowledge gaps, it is worth concluding this section with two issuesraised by one senior officer. The first issue is that no system exists for advising housing staff of important caselaw decisions,nor is there any mechanismin place to amend existingadministrative practice in the light of judicial decisions.The secondissue concerns the senior officer's perception of the ability of housing officers to process homeless applications. To quote this officer:

"Talking about housingofficers. No disrespectbut they are administrativegrades

only makingdecisions on homelesscases... I think thesedecisions should be madeat

a higherlevel. " c) Rightsof Repair

A large numberof repairsin CouncilA compriserepairs that fall under the categoryof the right-to-repair scheme. For the quarterly period April to June 1999, for instance,a total

211 of four thousand and forty three right-to-repair works were instructed (Council A Housing

Service PerformanceMonitoring, June 1999)"; while in respect of one area housing office alone, a total of one thousand sevenhundred and seventy four right-to-repair works were issuedfor the half-yearly period ending in December 1999."

Given this volume, then, one might expect at least a number of claims for compensation to have been made, particularly in the light of Council A's repairs performancein respect of repairs for previous years which reveal a less than 100% completion within timescales. For example, first priority category repairs (including right-to-repair works) were completed successfullyin 97% and 96.3% of the casesin respect of financial years ending 1997 and

1998 respectively.315 In view of the not insignificant numbers of repairs this shortfall

likely be "qualifying represents- and assumingthat certain of the repairs are to repairs" -

one might anticipate that a not insignificant number of tenants may have received

for compensation from Council A on account of its failure to meet, legal timescales

completing such repairs. Indeed, one senior officer has confirmed-that:

"We issue thousands of emergenciesin a week... and the majority of them will

probably fall under the right-to-repair scheme."

Yet information provided revealsthat for the period 1996 to 2000 only two caseshave

16 received compensation' .

Statistics suggest,then, that rights may not be being implemented effectively and this

point is now elaboratedby referenceto anomaliesbetween current practice and legislative

provisions. First, statutory provisions currently oblige councils to advise tenants of their

313It should be noted that the Council monitors its right-to-repair works separatelyfrom other repair categoriessuch as voids. 314Council A correspondence18/1/2000. 315 Accounts Commission for Scotland, PerformanceInformation for Scottish Councils, 1997/98. 316The two payments in question amounting to L24 (October 1999) and LIO (February 2000 (Council A correspondence,March 2000). 212 legal rights whenever a qualifying repair arises. And the inadequacyof Council A advice to tenants of their legal right to compensationhas alreadybeen explained.But existing Council

A practices also fail to adhereto legal provisions in two other ways. Firstly, Council A fails to inform tenants annually in writing of the right-to-repair scheme,thereby contributing to ignorance of this right and, consequently, diminishing opportunities for the right being exercised."' As confirmed by a senior officer responsiblefor policy development:

"No I certainly don't tell tenants. Whether it is within some other package I can't

say."

Secondly,as confirmed by the samesenior officer:

"If an alternativecontractor is not usedthen we don't give themthe LIO. We don't

sendthem the 110 out becauseno contact has been madewith us", i. e. by the

alternativecontractor.

Yet making compensationpayments incumbent upon alternative contractors being utilised to carry out qualifying repairs is at odds with statutory provisions. Payment of the minimum

compensationof 110 should,in accordancewith legalprovisions, be madeautomatically to the tenant where statutory timescalesfor completion of repairs are not met, irrespective of whether or not the tenant actually claims compensation. As Scottish Office Circular

12/1994 notes:

"Paymentof compensationshould be madeautomatically to the securetenant.

The tenantshould not be requiredto makea claim"."'

It shouldbe notedat this point, though,that the questionof compensationmay no longer

be significantif right-to-repairworks are effectedtimeously by CouncilA. Consideration

of housing service.performance monitoring, for example,shows that, for the quarterly

317Secure Tenants (Right to Repair) (Scotland) Regulations, 1994, SI 1994/1046,Regulation 13. 318Paragraph 27. 213 period April to June 1999 all right-to-repair jobs were completed on time."' Indeed,

Council A has set a target completion figure of 99% (within timescales)for all qualifying

repairs under the right-to-repair scheme. Further research is required, therefore, to

is confirm whether compensationto tenants in respect of the right-to-repair scheme of

reduced significance, particularly as current levels of performance do indicate an

improvement from previous levels (only 86% of emergency repairs completed within

timescalefor the period October to December1998). "'

Other Repair Obligations

Discussions with a senior officer in Council A highlighted that Schedule 10 repair

obligations are not monitored separately. Statistical data is not, therefore, readily available to evaluatethe effectivenessof the council's repair service in respect of the statutory repair

obligations. Scrutiny of individual house records would be required to collate this

information,a task outwith the scopeof this research. Of interestthough - and a point

notified by seniorofficers in both councils- is that certain of the repairs coveredunder

schedule10 suchas fabric repairs eg, rhone pipes, are deferredwith repairsto be undertaken

as part of cyclical maintenanceprogrammes.

Discussionswith intervieweesalso revealed that CouncilA failedto provideinformation

to tenantsconcerning the tenant'sright to withhold rent in the eventof the landlordfailing

to fulfil repairobligations. This seemsattributable in part to lack of knowledge.When asked

aboutthis particularright, onesenior officer opined:

"I would saywithholding rent is not a right that tenantshave. "

319Six thousandtwo hundredand two jobs for the combinedCouncil A areas. 320Council A HousingDepartment: "Quarterly Performance Review -I Octoberto 31 December1998". On the otherhand, the largepercentage of repairsindicated here that are not completedon time suggest compensationamounts unpaid to tenants,particularly if consideredfor the countryas a whole,may be extensive,an interestingarea of researchstill to be done. 214 d) Security of Tenure

Turning now to addressthe question of Council A practices in respect of actions raised

to recoverpossession of securetenancies, this is tackledby referenceto rent arrearspractice

and'anti-socialpractice.

i) Rent Arrears Practice

Prior to assessingCouncil A practice against legal rules, some general points are first

noted. Firstly, rental income representsthe prime source of revenueto the council's HRA

and control of debt is, therefore, a key housing managementfunction.

Secondly, a total of thirty four caseswere selectedfor assessmentand comprise casesin

which some form of legal action has been initiated, either serviceof a Notice of Proceedings

(NOP) or a summonsto court. A secondarystudy of forty casesin respectof which eviction

decreeshave been granted was also carried out to assessissues of implementation.

Thirdly, the abovefigures represent only a smallpercentage of total cases(see Table 4

below). Conclusionsdrawn from such figures can, therefore, only be tentative in nature.

Table 4: Managing Rent Arrears (April 1998-March 1999) "

Type of Action No of Cases NOPs 10,446 Court Action 2,262 Eviction Decrees 1,557 Evictions Enforced 115

(Source: Council A Internal Report)

As the aboveTable shows, a largevolume of casesinvolve some form of legal action,the

NOP figure, for instance,crudely representing21% of the total council stock. Of

Council A has set the target for controlling rent arrears for 1999/2000at 2.2.% of annual gross rental debit (Council A Housing ServicePerformance Monitoring, June 1999). Arrears are substantial with the total outstanding at 31 March 1998 being 0,992,811 or 2.3% of the annual debit (Council A Annual Report and Accounts, 1997/98). 215 significance,though, is the relatively large number of decreesfor eviction granted, albeit few decreesfor eviction appearto be implemented.

Turning now to the examination of Council A practice in respect of rent arrears, a numberof concernscan be identifiedthat involveboth legaland good practiceissues. With respectto legal issues,two key points are noted.

The first concern- and one already alluded to - relates to the fact that eviction decrees are generally not used by the date specified in the extract decree, a fact confinned by assessmentof the forty evictioncases studied. Indeed,holding decrees and using them for a period of up to one year from the specifieddate is commonpractice. At grassrootslevel this is perceived as being perfectly lawful, a part of custom and practice rather than a staff instruction. In the words of one housing officer:

"It's just alwaysbeen my understandingthat you can hold a decreefor a year. Isthat

not the case?"

While one senior officer is aware of the specific problem noting interestingly that:

"Many authorities are sitting on a time bomb. I was at an Institute of Housing

meetingthe otherday... andmost of themdo the same(withhold decrees). "

Yet as another senior officer states,this is also condonedby Sheriff Officers:

"Our sheriff officers will act on them up to a year. We are all aware of the illegalities

of that, but we haveas yet not beenquestioned on that... accordingto our sheriff

officers it is a grey area."

It is also interestingto note that thirty one out of the forty decreesgranted are eviction decreeswith the debt to be repaidby instalment,the term "instalment"arguably a major reasonfor the unlawful action sincestaff interviewedseemed unaware that, in raisingcourt action via the serviceof a variablesummons, Council A was both seekingdecree to evict

216 and decree for repayment of debt. In short, a prevailing view seemedto be that decrees

could be deferred provided tenants maintainedrepayment instalments agreed by the court.

By way of digression,it is also interestingto note one senior officer's commentsin terms of

time allocatedto eachcase by the court:

"One Friday he (the sheriff) must have spent about 5 or 10 minutes on each

(to know) the tenant's " case... wanting every aspectof situation.

In explaining this point the officer confirmed that this sheriff was delving into personal

circumstancesto assessthe reasonablenessof granting eviction decreesin the case of

householdsin rent arrears. This lends support to the theoretical appraisal of the role of the judiciary carried out in Chapter 2.

But by aftemoon:

"Eventually he gave up and decided asking only payments, when was the last

paymentmade, how muchwas the sumsued, how muchwas owed now, andwe got

our decrees. But this is an exceptionalthing to happen."

The second issue identified as a concern is the tendency on occasion to lump debt

together,thus prejudicing the legalityof court actionsraised. As onesenior officer noted:

"We aren't always able to distinguishhousing benefit overpaymentsfrom other Rent

Account adjustments... it could be large amounts(ie housing benefit overpayments)

slipping through."

In Case42, for instance,court actionis raisedwhere debt totals L850. Yet most of this

sumis attributableto overpaymentof housingbenefit which shouldnot be countedas arrears

of rent.322 As McIntosh(1995) notes, although the landlordis entitledto recoveryof

322To quotethe file "Shewas advised that sheowed rent of L786.38to the endof cycle 10 after an O/P of H/B of L642.26at cycle9" (Case42, ArrearsFile Statementby housingofficer). 217 overpaymentthrough court proceedingsfor payment of money"', the landlord cannot raise an action for eviction based on overpaymentof housing benefit. This applies becausethe grant of benefit extinguishes liability for any rent element covered by benefit; and the council cannot lawfully regard the tenant as being in arrearsfor an extinguishedliability to pay rent.

With respect to current arrearspractice that may conflict with good practice, one issue identified as being potentially detrimentalto tenants' rights concernsthat of actions taken to prevent debt accruing. For example,legal actions appearto be initiated on occasionprior to full assessmentof income and entitlementto benefit being established. Thus, in Case33, the housing officer statesin correspondenceof January1999:

"Mrs M... interviewed regarding decree call letter. HB Form completed. Income

Details supplied".

Again, it seems-that tenants are often requestedto adhere to unreasonablerepayment requests, particularly where lump sums are being requestedto stave off eviction actions.

Yet the effect of such arrangementscan propel tenants into greater levels of debt where moneyis borrowedat high ratesof interestand, as a result of such debt,jeopardise their ability in future to sustaintheir tenancy. In Case25, for instance,the tenant has been asked to pay L400 within 5 days despitethe fact that the tenant is unemployedand likely to qualify for benefit. ii) Anti-Social Behaviour Practice

Nineteencases were assessedrepresenting the majorityof 'anti-social'behaviour cases dealt with by the two areahousing offices in the relevantperiod. Thesecases cover the period 1998/1999with twelve of the nineteencases arising only in 1999and constitutingat

323 The Social Securi!y Administration Act 1992 and Part XIII of the Housing Benefit (General) Regulations 1987, SI 1971, Regulations 102 and 105. 218 least 80% of outstanding cases. Prior to assessingCouncil A practice in the light of legal requirements, the following general points are noted. Firstly, the main problem reported concerns complaints abut noise levels; these complaints comprise fifteen cases(or 78% of

all cases)."'

Secondly,household composition details appearto be recorded in different locations and

are not readily accessiblefrom the tenancy files. Consequentlyhousehold data is ornitted

from the examination.

Thirdly, and in line with good practice, Council A staff implement an inter-agency

strategy for tackling incidents of anti-social behaviour and contact a range of agenciesto

resolve problems (eg social work, police, other council departmentsetc).

Examination of anti-social casesreveals that legal requirementsare largely being met in

practice, with court actions not being raised without having regard to the criteria of

reasonableness,although occasionallyNOP's may be issuedas a deterrent. Thus, in Case 16,

Council A's lawyer advisesa housingmanager:

"... it may be that it would be worth serving a notice of Proceedingseven if at the

end of the day the behaviourcomplained of is not severeenough for us to be

successfulin an evictionaction. The merefact that the noticehas been served might

11325 havesome effect.

Indeed,statistics show that, prior to raisingNOP's that are issuedby councillawyers, a

full rangeof managementpreventative actions are first attempted,including correspondence,

home visits, inter-agencyliaison and utilisation of specialistorganisations, for examplean

324The othercomplaints noted include violence (1), accessrights (1), neighbourdisputes (1) and relatives (1). Someof the Cases,of course,involv'e more than onecomplaint eg Cases6,7 & 13. 121Council A InternalMemo 17/2/99. 219 investigating agency."'

Yet one elementof practice that fails to comply with good practice guidelines,albeit that it is not unlawful, relates to the dearth and quality of advice provided by housing staff to tenants vis-i-vis their rights. Examination of the files highlights, for example,that tenants who are victims of anti-socialbehaviour are not generallyadvised of possibleremedies they themselvesmight take, eg interdicts, or in the caseof relationshipbreakdown, the possibility

of seeking redressunder the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

Nor for that matter does Council A advise of its powers to resolve such casesvia housing

legislation, for example, its power to seek recovery of possessionand re-house the tenant

thereby evicted."' And, with referenceto quality of advice offered, information provided on

file appearsoften to be misleading or legally inaccurate. In Case 2, for instance, a tenant

who hasallegedly dumped waste is wamed:

"We will take steps to prosecute the perpetrators under Enviromnental Health

Regulations. This will affect your tenancy".

It is not clear, however,how this could, per se, adverselyaffect the person'ssecure

tenancystatus on the basisof legalaction under environment law, for example,service of an

abatementorder to dealwith a statutorynuisance.

Summary

Evaluationof rights implementationwithin CouncilA hasrevealed a numberof concerns

in respectof eachof the individualrights under consideration. With regardto accessto files,

326It shouldalso be notedthat limited useof otherremedies is evidentin actionstaken. In noneof the nineteencases, for instance,were actions raised involving interdictor implement;while the useof ASBO's wasonly just beingconsidered, doubtless due to the recentintroduction of ASBO's as a legal remedy. The Crime andDisorder Act 1998,s23, introduced ASBO's from 1/4/99. Circular 3/1999 providesdetailed guidance. See Moore (2000) and Corbett(2001) for detailsof implementation. 327The Housing(Scotland) Act 1987,schedule 3, ground16. 220 for instance,albeit that practice per se is not unlawful, the absenceof any formal systemfor processingrequests, coupled with dearth of publicity and lack of staff training, pose major barriers to effective rights take-up. And, with reference to homelessnessprocedures, examinationof file data suggestspractices that are both unlawful and inconsistentwith good practice recommendedby the Code of Guidance on which Council A Policy is allegedly based. Both deficienciesare of grave concern in view of their potential consequencesfor people's lives. Compliancewith statutory requirementshas, prima facie, occurred in respect of establishing a system that encapsulatesthe right-to-repair procedures. Yet detailed scrutiny of existing practice suggeststhat tenantsare being misinformed about the effects of the right in repairs documentation, thereby exerting a negative impact on their ability to exercisetheir rights properly. This is especiallyimportant given Council A's failure to pay compensationautomatically when statutory timescalesfor completion of repairs are not met.

Finally, assessment of practice concerning security of tenure and recovery of possession indicates that current practice in respect of arrears actions may be contrary to law in a number of ways, particularly the practice of holding eviction decreesin force for lengthy periodsafter the date specifiedin the extractdecree. And, albeit CouncilA is reluctantto enforcesuch decrees, their eventualimplementation in specificcases represents a negative impact on tenants' rights in practice. With regardto court actionsinvolving anti-social behaviour,on the other hand,current practice conforms essentially with legal requirements andgood practiceguidelines, although lack of adviceby staff to tenantsmay on occasionbe detrimentalto rightsimplementation.

Other Factors in Rights Implementation

The systemstheory model appliedin this thesisto understandissues concerning rights

221 implementation entails that organisationalstrategy must synthesisea variety of elementsif objectives are to be achieved. Failure to incorporate legal rights information into policy

documentationin part explainsperformance deficiencies assessed in the previoussections.

Yet, in accordance with systems theory, other elements must be considered if the

implementationgap is to be explained.

This section of Chapter 3 now evaluatesthese factors identified from both interviewee

responsesand evaluation of council practices. The factors identified for detailed review are

assessedunder the following headings, albeit it is stressed that much overlap occurs:

workload and methods of work; performance management; communications; and in personnel matters. Prior to carrying out this assessment,though, it is important to bear

mind the following points.

Firstly, although most staff responseswere provided openly and without hesitation, a

rninority of seniorstaff interviewedtended to answerrather guardedly. "' Questionsposed

during the actual interviews, then, required to probe to teaseout particular points. Appendix

2 contains the four main "topic guides" used.

Secondly,in order to gaugetenants' perspectiveson rights implementation,a total of four

tenants were interviewed, two from each of the councils under review. A summary of their

views is provided in the final section of Chapter4 under the heading'Rights-Bearers

Capacity to Enforce their Rights'.

a) WorkloadAndMethods of Work

Previousresearch has suggested that staff workloadin the field of housingmanagement

is extremely onerous (Lipski (1980); Legg et al (1981)). Yet research studies have also

suggestedthat there is no simple correlation betweenworkload and effective rights

328This was aggravatedby the fact that intcrviewces were taped and subsequentlytranscribed. Only one interviewee, however, refused to participate in the taping process,preferring simply to have answers recorded manually. 222 implementation. Indeed, as Loveland (1995) highlights in his major study implementationof homelessnesslaw:

"For officers in all three councils, the most problematic consequenceof growing

caseloadswas a more general deterioration in the pleasantnessof the work task"

138).

A further issueidentified in the literaturereview is that organisationalstructures of local authorities have dramatically changedsince the 1970's when the typical housing department was "centralised and segmentedinto specialised divisions". (Warburton (1995) pl8l).

Indeed, the majority of contemporarylocal authority organisational structures - Council A included - are based on a decentralisedhousing managementapproach with staff undertaking a range of tasks (ie genericism) rather than being specialist workers; decentralisationhaving also been accordedpolitical support in many housing organisational cultures. As Claphain (1987) notes, decentralisationof service delivery has been a general trend in recentyears,

"... though the trend is strongest and most developed in public housing where it is

being applied to both managementand maintenancefunctione' (p150).

The objectivesof decentralisationcan be classifiedbroadly under two headings,namely a) the managerialand b) the political. Clapham(1987) highlights that managerialobjectives are concernedessentially with questionsof effectivenessand efficiencyof servicedelivery, for example,ensuring that servicesare provided as economicallyas possible. Political objectives,on the other hand,are diverseand "range from providinga 'friendlier' serviceto tenantsto alteringfundamentally the relationshipbetween the local authorityand residents"

(Clapham(1987) p150). Suchchanges are aligned to broaderCentral Government strategic political objectivesthat envisageusing "local governmentas a campaigningvehicle"

223 (Clapham (19 87) p 151).

Decentralisationof services,it shouldbe noted,is often accompaniedwith a shift to

generic as opposed to specialist officers. This is also advocated on grounds of efficiency.

As Saunders(1993) emphasises"generic problems need generic solutione' (p7), in effect

individual housing officers carrying out a variety of housing managementactivities to tackle

problems holistically.

It is the purpose of this section, then, to evaluatethe impact on rights implementation resulting from Council A's decentralisedhousing managementservice. " And this evaluation

is now carried out by considerationof staff views concerningthe effect of generic working

practicesupon servicedelivery. First, though, let us recapthe theoretical pros and cons of the

generic approach.

In his major theoretical study of generic housing working practices discussedin Chapter

2, Saunders(1993) highlights that generic working can result in improved service delivery,

for instance,by enablingtenant queriesto be dealt with by one officer. Yet the sameauthor

arguesthat generic working is likely to prove less effective where specific conditions remain

unfavourable, for example, the managementof patch sizes averaging over five hundred

propertieswould generallyrepresent an unfavourablework condition not conduciveto

generic working. "' This latter point is itself subject to qualification, though, as the number

of propertiesper se cannotdetermine management workload requirements.In the better

quality housingestates of the late 1970's,for instance,large parts of which havenow been

sold, officers could manage larger housing stock levels given the socio-economic

compositionof tenant householdsand the fact that good estateshad fewer management

" With the exceptionof the maintenanceftinction that remainsa specialismin CouncilA. 330As advisedby managerialstaff, officersi'n CouncilA (andCouncil B) tendedto managepatches in excess of five hundredproperties, and occasionally more than a thousand.In certaindifficult-to-let areas numbersoccasionally a little belowfive hundredproperties per patch. 224 problems, ie lower re-let rates, lessrepairs etc.

In deciding to structure services generically, Council A did not carry out a prior assessmentas to how effective the generic approachmight be in practice, in particular how this might impact on service delivery from a rights perspective. And staff opinions are somewhat mixed as regards the pros and cons of genericism. In support of specialist servicesissues, for instance,one senior officer argues:

"I think homelessnessis and should be a specialist role. I don't think a housing

officer dealingwith rent arrearsand allocationsand other fields shouldbe dealing

with homelessnessas well. "

Again, in this casea senior officer advocatingpreference for specialistservices in respect of arrearscontrol:

"I think specialiststaff dealingsolely with arrearswould perhapsbe better becauseI

think that the more you get involved with somethingthe better you get at it. But I

think in the current economicclimate it would be very, very difficult within this

authorityfor that to happen."

On the other hand, severalindividuals at area housing office level expressedthe alternativeview that the genericworking methodshould remain the preferredform, that it is befitting of the "customercare" philosophythat underpinscorporate council strategy. This perspectivewas supportedby housing officers, for instance,in those situationswhere homelessnessworkload is less severe,that is, in specificgeographical areas where few applicationsare receivedand/or where void or re-let levelsremain sufficiently high to allow the swift rehousingof applicants.Indeed, this perspectiveechoes the theoreticalcriticism of the generic versus specialistdebate in Chapter 2, namely that neither genericismnor specialismare ideal forms, that either approachis feasibledependent on a range of other

225 factors in addition to workload, such as staff ability, training provision, policy and procedural developmentand well-establishedIT systems.

Staff opinions on the severity of workload were unanimous, however, particularly

problematic it would appearbecause of the developing Council A performancemanagement

culturediscussed below. As oneof the maintenancestaff comments,for instance:

is horrendous,it is... I don't do job Simple "Workload really think we the right . as

that".

Again, and in respectof homelessnesscases, a senior officer points out that homelessness

caseshave:

"gone through the roof and people are not investigating casesproperly", a point that

was of courseverified as part of the analysisof casefiles. "'

b) Performance Management

Research has confirmed the major growth of performance managementmeasures in

respect of housing management(Boyne (1998); Jacobsand Manzi (2000)); this research

has also indicated the inadequacy of current performance managementsystems (Lipski

(1980)), as well as suggestingthat these systemsexert negative effects on service delivery

(Harvey (1999)). This section now examines the effects of performance management

systemsupon administrative practice in Council A. Prior to carrying out this examination,

though, Council A's performancemanagement culture is briefly summarised.

Council A's performance managementsystem aspires to fulfil the requirements of the

local authority Best Value strategy. With regard to targets set within this strategy, these

comply with statutory requirements and focus on quantitative as opposed to qualitative

331The sameofficer alsoalludes, though, to the fact that occasionallylack of staff time appearsto have workedin applicants'interests since staff mayerr on the sideof cautionand treatapplicants as being statutorilyhomeless. This assertionhas not beensubject to empiricalscrutiny, though, and thereforethe occurrenceof suchpractice cannot be quantified. 226 measures,for instance,the restrictionof rent arrearsdebt to x% of the rental debit. In addition, Council A setsits own range of performancetargets such as staff being required to answer correspondencein x number of days, or re-housingall statutory homelessapplicants within three months. These indicators are intendedto complementstatutory targets and to take cognisance of corporate goals, for example, the provision of quality services to

'customers'. It should be noted that indicators are not prioritised relative to each other,

whether statutory or non-statutory.

And, in considering interviewee feedback concerning such indicators, three principal

concerns were raised."' The first concern is that compilation of statistical returns for

monitoring purposes increasesstaff workload and diverts staff from carrying out service

functions, for instance,estate management activities. The secondconcern is that subsequent

analysisby managementof statisticalreturns can lead to serviceprovision becoming reactive

in nature and deliveredwithout adherenceto clear prioritisationof duties. As one senior

officer complains:

"Staff are givenhassle over the arrearsfigures, (then) their void levels,then told to

concentrateon homelessnese'.

The final concern is that staff workload is slantedtowards meeting those specific targets

set at the expenseof other housing duties not subject to monitoring."' One officer

respondedcandidly, for instance,that repair returnsare routinely falsifiedto meet targets

andthat managerialstaff activelycollude in this dissimulationprocess. "'

... All staff interviewedwere aware of CouncilA's indicators,although the majoritywere unaware of their sourceie AccountsCommission. Again, few staff hadheard of the CharteredInstitute of Housing performancestandards. 333This point is tacitly acknowledgedby an extremelysenior officer who states:"I think oneof the dangers with performanceindicators is that you haveto be focusedand if you havetoo many,you really can't see the woodfor the trees." 334An interestingaside by a senioroff icer at an informal meetingwas especially revealing in referringto the quarterlystatistical housing returns. He quipped: " the figuresare garbage". 227 Turning now to assessthese issuesin terms of relevanceto the rights implementation question, the following points are made. Firstly, it would appear from staff feedback that organisationalproblems do indeed exist within Council A, in particular lack of management

to the issue the heavy facing 33' But failure to support address of workload currently staff . carry out duties as thoroughly or effectivelyas desiredbecause of workload, although conflicting with good housing managementpractice guidance,is not synonymouswith non- implementation of rights. In the case of access-tofiles and the right-to-repair scheme,for instance, non-implementation of legal rights has little, if any, connection with workload issues. In the caseof homelessness,on the other hand,workload factors have been seen to play a negative role exemplified in those situations where applications are not assessed properly becauseof work pressures. Yet even this assumptionhas been countered by the suggestionthat lack of time to assessapplications thoroughly may actually benefit homeless applicantswhere staff consciouslyerr on the side of caution.

Secondly,given that workload pressuresare not sufficient to explain the deficienciesvis- i-vis rights implementation highlighted earlier in this Chapter, it is important to consider another set of factors that may clarify matters. To these issuesthe rest of Chapter 3 now tums. c) Communications

Chapter 2 highlighted the importanceof communicationfor effective rights implementationand, as Bean and Hussey (2000) emphasise, organisations "should have clear mechanismsin placefor formal communication"(pl2), formal communicationcomprising a numberof elementssuch as implementationof detailedpolicies and procedures,training programmes,staff appraisalsystems, the disseminationof newslettersor briefing notesand

335 Given that no systemcurrently exists for monitoring workload, findings must remain largely conjectural. 228 holding regular meetings. Further, communicationsystems are increasinglyvital in times of organisational flux if staff motivation and commitment to organisational aims (including rights) is to be sustained(Bean and Hussey(2000)).

Prior to assessingCouncil A communicationsystems both internally and externally, it is wise to note issuesof a conceptualnature. Broadly speaking,organisational systems within local authorities involve three main groups that Mintzberg (1973) has labelled as comprising superiors,outsiders and subordinates.It shouldbe noted, of course,that superiorsmay themselvesbe subordinateswithin the hierarchicalechelons. And theoreticalstudies have revealed interesting trends as background information to the pending evaluation of Council

A practices. Mintzberg (1973) points out, for instance,that contact between superior and subordinate tends to be infrequent; whereas Stewart (1985) highlights the fact that communicationsin British organisationsare often inadequatedue to communicationbarriers such as managerialfailure to anticipatethat subordinatesmay I interpret information received in different ways."' Further, to be effective communicationsystems must ensurea two-way process,that is, feedbackfrom those affectedby the informationcommunicated must be securedto gaugewhether information disseminated has been implemented properly. Finally, communication must befit the organisationalculture. As Handy (1993) notes, for example, culturesthat are subjectto regularchange cannot rely solelyon hierarchicaldissernination of information systemsbased on 'a managementby memo' approach. In situations of organisationalflux, fluidity of informationnetworks, ic the use of both formal and informal

'nets', is critical and, as Dutfield and Eling (1994) add: "... keep the linkagesin the communicationas few aspossible. The greaterthe numberof peoplein the chainthe greater the chanceof distortion"(p9l).

336 As Stewart(1985) adds, such interpretative differences arise for a numberof reasons,including people's differentsocietal and professionalbackgrounds as well asexperience. 229 i) Intemal Communications

Internal communications systems within Council A comprise an array of formal mechanisms,including team briefings, staff newsletters,as well as informal methods such as staff meetings. In addition, an annual staff conferenceis in place that seeksto ensure staff feedbackis obtainedon departmentalservices and their effectiveness."' Primafacie, then, systems appear to meet Handy's criterion of using "more than one communications net", nets comprising hierarchical,expert, statusand friendshipgroups (Handy (1985) p359).

Yet detailed scrutiny of existing practice is indicative of specific problems in respect of communications practice confirming concernsraised in the literature review about current standardsof communicationwithin local authorities. Informationgleaned via the annual staff conference in 1999, for example, portrays high levels of staff dissatisfaction with existing communications,with 68% of staff of the opinion that senior managementis not

committed to effective staff communications.Again, the occurrenceof team briefings

appearsto have ceasedas a result of managerialworkloads, this important 'net' of information sharing having been reduced to nothing more than a sham. Finally it appears that an upward:downward system of communicationhas broken down in practice,a primary

factor being the failure by middle-managementto inform senior managementof problem

issues,the formerfearful of the latter'sreaction. To quoteone officer:

"Communicationfrom the bottom rung is not carriedforward to seniormanagement.

It is distortedby middlemanagement as to what highermanagement want to hear.

Therefore,higher managementis not being informed of the problems at lower levels."

And, with specificregard to the communicationof legalrights information to staff within

The important issue of training is covered separatelyin the next section. 230 CouncilA, it is stressedthat thereis no clearprocedural communication system in placefor ensuringthat important legal changesare notified to staff (e.g. legislative changesintroduced by the Crime and Disorder Act 1998), nor is important case law automatically notified to staff. Indeed, reference by one senior officer to the supposed dissemination of legal information by staff briefing notes hasbeen shown to be lessthan satisfactory. According to this officer, for instance,a detailedbriefing note covering accessto files regulations had been

circulated to all area housing office staff. Yet none of the intervieweeswas aware of such a

briefing note, a clear signal that existing communicationstrategy is flawed."'

Finally, communication is essentialin organisationsundergoing change, and thus is

extremely important in respect of local authorities such as Council A in the throes of

restructuring. Staff comments on change are vital to enable managers to "gauge the

operational feasibility of their proposals" (Bichard (1994) p271). Yet again, though, current

practicesin Council A appearto be at odds with this position, a point confirmedby

interviewees insofar as the development of policies tended to be carried out using

hierarchical methods, that is, little consultation with staff occurred prior to the

implementationof mainstreamhousing policies. Of particularnote here is the fact that

training on those policies did not focus on legal rights issues.

ii) Extemal Communications

Communicationsto tenantsand the generalpublic assumesa variety of guisesincluding

leaflets,newsletters and CouncilA's tenancyagreement that is providedto all new tenants.

Tenants are also notified of specific rights information such as the right-to-repair schemein

the tenancy agreement(albeit not wholly accurate), or the right to possible entitlement to

compensationfor improvementin Council A's terminationof tenancyletter. In addition,

338Interesting also is the fact that althoughstaff areaware of policy and proceduralmanuals, they are generallyunaware of the existenceof policy andprocedural manuals outwith their areaof work. 231 although there is no tenant handbook yet developed, new tenants receive a copy of an information Pack that containslimited informationabout servicedelivery, for instance,it alludesbriefly to the right-to-repair schemeand also the timescaleswithin which the various repair categoriesare to be completed.

Despite the above, however, information to tenantson the four rights under investigation

for instance, remainsminimal. There is no publicity on the right to accesspersonal files, and homelessnessservices are not advertisedbroadly notwithstandingthe alleged commitmentby

Council A to basetheir homelessnessservices on the Code of Guidancethat stressesthe importance of publicity. As advised by one senior officer, for example, leaflets are not availablefor applicants(young people excepted),the principal publicity comprising posters:

"that shouldbe on the areaoffices advisingpeople who are homelessto seekour

help".

In addition,such posters had been sent to CABx and socialwork offices,but it was not known to what extent they were publicly visible. Again, information provided on repairs fails to cover the landlord'sstatutory obligations in detail and omits any referenceto the tenant'scommon law right to withhold rent in situationswhere landlords unreasonably fail to meet repairing obligations. Finally, none of the mainstreampolicies with the exception of allocationsare publicisedfor publicconsumption. Tenants, therefore, are not providedwith detailed information on their rights regarding security of tenure. As one senior officer interviewedas to whethercouncil policies on evictionare publicisedreplied: "I don't think there is any publicity on that.""' In consequence,Council A practice falls far short of

Goodlad and Williams' (1994) vision when they note:

66 adviceand informationcan be seenas a right or entitlementwhich none should

339The fact that mainstream policies were in place shortly after the inception of Council A (allocations excepted) suggeststhat lack of external documentation is indicative of lack of planning, or inadequacyof resourcesallocated to the production of external documentation. 232 be barredfrom receivingon the groundsof low income,location, tenure or need"

(p30).

It may be countered at this point that provision of rights information through leaflets or handbookshas less significancefrom a rights perspectivesince rights information is included in Council A's tenancy agreement. Again, though, it is necessaryto consider this objection in context. Two points will suffice to clarify matters. The first point is that - and as highlighted when Council A documentation was discussed - the Council A tenancy agreementomits relevantrights informationso that, in the absenceof this informationbeing supplied elsewhere,tenants are likely to remain ignorant of their rights.

The secondpoint is that tenants are not advisedof their rights in detail by housing staff when tenants sign their tenancy agreement. This point is also significant insofar as the

Council A document contains much legaleseand is not readily accessibleto tenants unaware

of such terminology.

d) -Personnel Matters

The major general housing managementstudies discussed in Chapter 2 have stressedthat the provision of staff training and educationis of fundamentalimportance for effective

housing managementservice delivery, including carrying out administrative practice in line

with legal requirements(Clarke (1981); Saunders(1993); Reid et al (2000)). Yet research

have studies also confirmedthat trainingprovision for housingstaff has- from a historical

perspective- beenextremely limited in the local authorityhousing sector (Darke andDarke

(1979); Kay et al (1986); Centre for Housing Research(1989)). Indeed, Loveland (1995)

emphasisesthat housing managementlegal training is grossly inadequate,a defect that arises

partly from housingmanagement being subject to "the proletarianizationprocess (that) has

long beenvisible in Britain's publicsector" (p23).

233 More recently, however, researchhas suggestedthat "there appearsto have been a

in growth in on-the-job training" (Caimcrosset al (1997) p60), as well as "a great expansion

(1997) graduate and postgraduate and other (housing) vocational courses (Bayley p49).

And such developmentsare important for two reasons. Firstly, as Buchananand Huczynski

(1997) point out, training programmesare important to bolster cultural organisationalgoals,

for how" such programmes signalling "visibly which goals (staff) should be striving and

(p528). Secondly, and as emphasisedin Chapter 2, training is vital from a rights implementation perspectivesince untrained staff will lack the legal knowledge necessaryto

deliver servicesin accordancewith legal principles.

It is important, therefore, to analysetraining provision within Council A to evaluatehow

this might impact upon service delivery. It is also stressedthat this evaluation will consider

training provision, both quantitatively and qualitatively, thereby addressingin part a defect

levels associatedwith the major research studies that have tended'to focus mainly on of

training provision.

e) Staff Training...

Prior to assessingtraining provision within Council A, information is given in terms of

policy commitment to training and procedural arrangementswithin Council A concerning

training delivery.

PoliU Commitment

Policy commitment to training is integral to Council A. In the successful"Charter Marie'

application in 1998, for example,it is statedthat:

"Staff receive training to enhance their customer service skills and attention is

focused on the importance of putting customers first" (Council A Charter Mark

340This examinationincludes the assessmentof the priority givento formal educationaltraining programmes. 234 application (1998)).

Again, the housing Oepartmenttraining plan states categorically that, through training and developmentprogrammes, Council A:

&&aimsto ensurethat staff are fully equippedwith the skills and knowledge they need

to carry out their responsibilitiee' (Council A Training Plan 1999/2000).

In this connection Council A has espousedits commitment to achieving Investors in

People status.

Procedural Arrangements

With respect to procedural arrangementsfor carrying out training within Council A, a specialist training manager is in post who is responsible for the co-ordination of all departmental training, including both internal and external training courses, i. e. further education. In terms of provision of training, Council A strategy utilises a range of methods involving a) in-houseproviders such as senior managers(e. g. in respect of training for policy implementation), b) specialist staff (e.g. legal staff involved in training for homelessnessor information technology staff for computer packages)and (occasionally) c) external agencies such as the CharteredInstitute of Housing (e.g. running specialisttraining such as

"Conducting a Homeless Interview"), as well as developing training via Legal Services

Agency (e.g. "Tackling EvictioW').

Turningto the assessmentof trainingprovision within CouncilA, this is carriedout by reference to the following points: extent of training; quality of training; financial comnutmentto training;and general factors. This will thenbe followed by an evaluationof I staff knowledgeconcerning both CouncilA policiesand the legalrights under review. i) Extent of TrajaWg

This sectionevaluates the levelsof trainingprovided by CouncilA in respectof external

235 and internal training. Statistical data is first highlighted prior to noting specific concerns gleanedfrom stafffeedback.

External training comprises two main methods, namely attendance at seminars and participation in further educationalcourse programmes. The former involves a large number of externalcourses that are attendedby both seniorand non-seniorstaff numbers. For

1998/99 the number of staff attending such courseswas approximately ninety (Council A

Training Plan 1999/2000).

Sponsorshipof staff on further educationaltraining coursesis also integral to Council A training strategy and a total of thirty four staff were undertaking formal housing studies during financial year 1998/99... ; while a further ten staff were participating in the modem apprenticeshipvocational qualification scheme. Unfortunately, though, Council A does not yet hold data on total numbersof staff possessinghousing qualifications. It is, therefore, not possible to affirm either a) levels-of qualified staff within Council A or b) how these might compare to national trends."'

Council A's training plan also contains details of internal training provision."' Scrutiny of informationprovided indicates two principalconcerns: firstly, thereis no mentionof time

allocated to policy and procedural training, nor how many staff have received such training.

Secondly, with the exception of a two day course concerning 'Conducting a Homeless

Interview' involvingthirty two staff,no otherrights training seems to havebeen delivered. "'

Interviewswith staff on levels of training providedby Council A, however, assist,

Twenty-five of this numberwere undertaking studies at HNC level andthe othernine constitute Diploma level students. 342Consideration of the dataavailable concerning qualifications of staffby areahousing office staff indicates,though, that moststaff do not hold a housingqualification. Of the ten staff members interviewed,for instance,only two officershold housingqualifications at HNC (or above),although three otherstaff membersare studyingfor housingqualifications (two at HNC and oneat Diploma level). 34'Training is catcgoriscdunder four main headings;corporate, core (i. e. policiesand procedures);IT: and other (i. e. specialist). 344Training by a specialistorganisation on securityof tenureissues was, however, planned by the Councilto takeplace in 2000for a selectnumber of supervisorystaff. 236 though, in clarifying matters. With respect to accessto files, for instance, all interviewees confirmed that no training had been received. Again, regarding legal training on repairs issues,maintenance staff advised that no formal training had been provided, indeed as one maintenanceofficer responded:

"Basically when I started I felt as if I was dropped in at the deep end.""'

Regarding training that was provided, on the other hand,three main concernswere stated by interviewees. The first concern was that training on Council A's policies and procedures was inadequatein terms of levels provided. The second concern was that training focuses on work processesrather than theoretical or conceptual principles, i. e. legal and good practice principles, a defect that is critical in explaining why work practices often fail to

conform with statutory provisions. One senior officer noted in respectof lack of knowledge

concerning homelessness,for example,the following concern:

"I've written numeroustimes to (HQ) saying we need this... we are crying out for

this". And later: "We're frightened of making a seriousmistake with somethine'.

The third concern is that training provided fails to take account of the systemicnature of

housingfunctions and, consequently, specialist staff suchas maintenanceofficers receive no

training in areas of work perceived by supervisory staff as lying outwith their particular

remit. Thus, for example, maintenanceofficers receive no training on mainstreamhousing

policies,nor indeeddo they receiveany training on the council'stenancy agreement despite

its importantlegal statusas definingthe contractualrelationship between Council A and the

tenants,in particularthe landlord'srepair obligationsof which maintenanceofficers were

essentiallyignorant. Again, maintenanceofficers receive no training on other council policies

such as arrears where repairs and rental issuesmay be closely linked from a rights

345Lack of training in this instanceis clearlyreflected by the officer's responseto a queryconcerning right- to-repairwhen it wasreplied: "If we fail to respondto a repair,I don't know of any right to compensationas yet. " 237 perspective,for instance,the commonlaw right of tenantsto withhold rent in the eventof the landlordfailing to fulfil relevantrepair obligations. This modularisationof training is exacerbated,of course, by lack of organisationalcommitment to the provision of regular ongoing training, a managementperspective based apparently on the premise that training needsare met as a result of one-off training that is not repeated. ii) Qualityof Trainin

In addition to the inadequatelevels of training provided, the effectivenessof that training was itself challengedin respect of its qualitative aspects,particularly the current method of using non-specialisttraining personnel to provide in-house training."' In responseto the quality of in-house training provided in respect of policies and procedures,for instance, one officer dismissedit rather curtly as being"not very good".347 Indeed, two of the primary disadvantagesof on-the-jobtraining noted by Farrant et al (1994), namelythat internal trainerslack the requiredskill and that on-the-jobtraining is kept free from interruptions, appear to be a feature of Council A training. The staff conferencereport (1999) notes, for example,that 61% of staff who completedthe questionnairedo not believethey havebeen trained adequatelyto meet operationalchanges, as well as being critical of on-the-job training that is carried out "with constantinterruptions". 348

Yet criticism of training provision is not restricted to the province of staff at grassroots level. One seniorofficer acknowledged,for example,the inadequatetime spenton training; while anothersenior officer was critical of on-the-jobtraining carried out by unqualified

346That is, housingprofessionals also competent in providingtraining andwith the specialistremit to developand organisetraining delivery. 3" Anotherofficer interestinglycited the caseof tenantshaving more information than staff aboutissues arising from the Crimeand Disorder Act 1998. This resultedin staff feelingembarrassed about not being ableto answerqueries because of lack of relevantinformation and the fact that no training hadbeen provided. 34'A total of threehundred and ninetynine housingstaff completedthe staff questionnaire;this represents just over 50% of all CouncilA housingemployees. 238 personnelwho were not well versed in both knowledge (of the law) and training competencies."' In addition,the sameofficer points out that staff.

"spend a lot of time on training coursesthat are not relevant in any way to their daily

workload... I think what we shoulddo moreis askthe staff what they needtraining

330 on" .

Prior to assessingfinancial commitment to training within Council A, one interesting perspectiveas to why training provision is lin-dtedboth quantitatively and qualitatively is that espousedby one of Council A's housing officers. In responseto a query as to why little time has apparentlybeen spent on specific legal rights training, this officer replied that:

"training is mostly centred around either interpersonalor technological factors rather

than theory (i. e. legal matters)... to save wasting money on the production-line

operators that we are".

Questionedfurther, the officer opinedthat seniormanagement want staff to haveminimal

knowledgesufficient only to give them the capabilityof carryingout basicadministrative

processes.This point is indeedredolent of Loveland'scomments in Chapter2 concerning

the proletarianisationof the housing'profession'. Indeed,it supportsthe generalfindings

of the literature review that training for housing staff is extremely limited. iii) Financial Commitment

As Farrant et. al (1994) note, budgetary levels of training expenditure are attributable moreto "historicallevels of spendingon trainingand the negotiatingof trainingofficers than it does to a carefully thought through policy decision" (p9). Although no fixed budgetary figure is agreed,research shows that percentagesof salary costs that are set aside for

`9 As notedby the latter, the "on-the-job"training optionis a cheaperoption, a strategythat is adoptedto reducefinancial coststo the organisation. 350A processthat is apparently being addressedby Council A's planned developmentof an employee review processthat links core job competenciesto job descriptions/proflles that will determine subsequent training. 239 training range from 1% to 5% (LGTB (1990). With reference to Council A, the training plan reveals that budgetary provision is just under 185,000 for the housing department, a figure that includes all external and internal training provision."' As highlighted by one senior officer, this represents less than the above recommended percentage levels and equates roughly to L125 per staff member per annum. Prima facie, then, financial commitment to training by Council A falls below desiredlevels, although current budgetary allocation may be less problematic given a) the focus on internal as opposed to external training, and b) the fact that the current budget sum does not take into account salary costs associatedwith the provision of training by in-housepersonnel.

iv) GeneralFactors

The previous sectionshave shown that training provision in Council A can be criticised on both quantitative and qualitative grounds. Council A training strategy is also open to criticism on theoretical grounds. This point is now clarified by reference to the training cycle model that was noted in Chapter2 (p 143).

In accordancewith this model the concept "training' encapsulatesa number of key elements as follows: assessmentof training needs; development of appropriate training; provision of training; validation and evaluation. And this model is extremely important from a rights perspective since failure to incorporate these elementsinto organisational training strategy will entail a) that housing staff training needs are not properly met and b) no systemsare in place to evaluatewhether training objectiveshave been realised.Each point is now explainedin turn.

In the context of this thesis, assessmentof staff training needs requires that staff be

351The exact figure is withheld to preserveanonymity. Interestingly, though, the 1998/99 training plan refers to days spent by staff at training as a 'cost' rather than an investment, although this expression is deleted from the 1999/2000training plan. This may reflect an internal reassessmentof training provision, albeit discussionswith one senior officer could not confirm this point. 240 equipped with knowledge to ensurethat administrativeservice delivery conforms with legal requirements. Scrutiny of training practice within Council A, however, reveals that individualofficers are simply instructed to attendad hoc trainingevents without the training needs of these officers being properly assessed,that is, the actual training required for officersto be competentin the full rangeof dutiesas determinedby individualofficers' job description. Where needsassessments are not undertakenin this systematicfashion, training is unlikely to equip officers with the requisite knowledge and skills to carry out their duties in a competent- and legally correct - manner. It is noted that this failure by senior managementto implement the key elementsof the training cycle is akin to their failure to implement organisationalstrategy and practice in a systemicmanner. This finding is wholly consistent with the principles of systems theory that are applied in this study as the theoreticalbasis for understandingimplementation issues.

Evaluation of the effects of training is critical if service delivery objectives are to be realised, for example,"to measurethe impact of the (training) event on job performance, or on the profitability, performance, flexibility or survival of the organisation as a whole"

(Harrison (1989) p271). Indeed, this perspective recognises that training is not self- justifying, that it "can be regardedas a point on a longer chain of intentions" (Pepper (1992) p7l). In the caseof local authorities,of course,this entailsprovision of trainingto enable staff to carry out administrativeprocesses that satisfylegal requirements.

Yet analysisof CouncilA practiceshows clearly that the effectsof trainingupon service delivery are not monitored,including whether such training is ensuringservice delivery complies with legal requirements. There are no systems in place to evaluate staff performancebefore and after training, for example,whether advice to homelessness applicantshas improved as a resultof trainingprovided.

241 ii) Staff Knowledge

Staff were questionedabout their knowledgeof CouncilA policiesand alsotheir legal knowledge of the four rights under review."' Interviewees comprised ten area office housing staff and senior or specialist staff located elsewhere. Prior to summarising the results,two generalpoints are mentioned.Firstly, it shouldbe emphasisedthat there is no direct correlation between the data derived from interviews and rights inadequacies identified in the analysis of file documentation since this was completed mainly by other officers not interviewed. For example,four of the ten areaoffice staff who were interviewed are seniorstaff not,routinely involved in housingstaff decisions.This point appliesequally in the caseof Council B.

Secondly, although legal knowledge is required by staff if they are to provide accurate information, it is not sufficient to ensureeffective rights implementation. For example,as in the caseof the right-to-repairscheme, knowledge cannot be appliedby staff in the absence of a formal system, or where staff are reluctant to provide such information because of managementperspectives. Further, greater levels of knowledge tend to exist at more senior organisationallevels and, if suchinformation is not communicatedto grassrootslevel, this may inhibit fights implementation. a) Knowledge of Policies

With respectto knowledgeof CouncilA policiesand procedures,staff were generally awareof the policiesin existencethat were directly relevantto their own areasof work, althoughawareness was limited regardingpolicies in respectof specialistissues such as the accessto files right. For example,out of the ten areaoffice interviewees,nine staff were uncertainwhether an actualpolicy existed.But it shouldbe notedthat awarenessof policies

352Specialist staff suchas maintenanceofficers, of course,were not questionedabout legal issuessuch as homelessnesswhich is whollYoutwith their remit. 242 being in existenceis not synonymouswith knowledge of actual content. For example, all housing staff were aware that Council A's homelessnesspolicy is purportedly based on the

Code of Guidance. Yet detailed queries revealed ignorance by staff of the Code's provisions. In responseto a query regardingwhether or not the council can ignore the Code in decision-making,for instance,one officer replied: "I'm not sure"; while anotherofficer - paradoxically perhapsinsofar as this officer was aware of the requirement to consider the

local Code- believedthat applicantsfleeing domestic violence can be referredback to the authorityarea in whichthe violencehas occurred without considerationof risk.

And ignorance of policies has been highlighted by senior officers involved in monitoring, a defectthat they attribute largelyto workload pressures(hitherto discussed)and also to lack of training."' Referring to inconsistencyof practice in homelessness,for example, the officer noteshow recenttraining may lead staff to "do thingsby the boole' but then after a periodelapses:

"... the staff has changedand maybethey've come from other offices and they've

gone back into their old habits. They are screeningpeople at the front counter."

Finally, and a factor that in part may explain the inadequate rights focus of policy documentation, the role of Council A lawyers in the development of policies is essentially advisory in nature. Lawyers do not have a proactive role, i. e. they participate in the policy developmentprocess at the requestof seniorhousing managerial staff. With the exception

housing of seniorstaff - and not surprisinggiven the infrequentcontact between grassroots in staff and council lawyers - housing staff were not aware of the specific role of lawyers the developmentof council policiesand procedures,namely their advisoryrole in respectof policy documentationcontent concerning legal matters.

Onesenior oflicer heavilycriticised in particulara seniormanagement comment expressed at a meeting that "you can learn homelessnessin half an hour", a commentthat betraysignorance of the complexities of this areaof work. 243 b) Knowledge of Rights i) Accessto Files

The maintenanceofficers who hold a specialistremit had little or no knowledge of the legal provisions concerningthe tenant's right to accesspersonal manual files, a fact that is perhapsunsurprising given their specialistremit. Yet legal knowledge possessedby housing managementstaff, at both officer and manageriallevels, was scant, particularly as regards details pertaining to this particular right, for example, there was marked ignorance of timescales for processing applications to access files or tenants' appeal rights. This

situation, it should be emphasised,was frowned upon by intervieweeswho believed knowledge of the right was important irrespective of usage by tenants. To quote one

officer:

46 we're generic you know and if someoneis asking you a question then you are

expectedto know it.""'

It is alsoworth notingthat noneof the housingstaff hadbeen appraised of detailsof the

new Data ProtectionAct 1998,for example,either individuals' rights of accessor the main

dataprotection principles themselves. "' This is worth mentioningfrom a rights perspective

for two reasons. Firstly, this is symptomatic of the inadequateinternal communicationsin

Council A that fail to promotedissemination of informationabout importantlegal matters.

Secondly, staff ignoranceis an important contributory factor to ineffective implementationof

law.

ii) Homelessness

Council A housingofficers carry out all mainstreamhousing management functions,

354It wasalso stated by staff that tenantsrarely make formal requeststo accessfile information,a point confirmedby statisticaldata already noted and a point in no way surprisinggiven the lack of publicity affordedto this right. 355The Data ProtectionAct 1998,s7 (1); and Schedule1. 244 including homelessness.And initial discussionhighlighted two positive points. Firstly, all of the housing officers seemedto be aware of the concept of the "four hurdlee', with staff normally referring to these as the "four points" or the "four steps". Secondly, interviewees were generally aware of the existenceof the Code of Guidance,although - as we have seen- detailedknowledge of this variedamong staff.

Detailed questioning, though, indicated several concerns. For example, although staff were able to verbalisethe key legal stages,their knowledge of specific legal provisions was often superficial. In respect of intentionality, for example, most staff were apparently unawareof the needto satisfythe three elementsof intentionalitybefore an intentionality decision could be taken. Again, in situationsinvolving referral of applicationsconsiderations,

if some staff apparently believed that local connection could be taken into account even someone was fleeing domestic violence. Lack of knowledge issues are discussedagain

shortly in the Case Study findings. It should be noted in passing that - although lack of

from knowledge is undoubtedly a factor in wrongful decision-taking- poor decisionsstem a range of factors, including inadequatetime being spent on individual casesbecause of work

pressures.

iii) Repairs

Intervieweesappeared to havelittle knowledgeof existingstatutory repair obligations,

althoughthey possessedsnippets of understanding,for example,having heard of termssuch

as "wind and watertight" and "right to repair". With respectto the housing officers

interviewed,this is perhapsunsurprising given that repairsis not integral to their work

duties. Of someconcern, however, was the findingthat this lack of knowledgeextended to

the two specialistmaintenance officers interviewed, as well as their supervisoryofficers. "'

356 The staff membermost au fait with gencrallegal repairsobligations - andthe only oneapparently aware of the legislativeprovisions under Schedule 10 - wasthe mostsenior staff memberinterviewed. 245 Examplesof their dearth of knowledgeincluded lack of awarenessof sourcesof law,

including ignoranceof legal detail such as what constitutes"qualifying repair" under the

statutory right-to-repairscheme, or the tenant'sright to withhold rent. As one officer

remarked:

"If we fail to respondto a repairI don't know of anyright to compensationas yet. "

Clarificationof staff ignorancewas givenby one seniorofficer. This officer confirmed

that more training is required, although he affirmed that staff don't need to know the legal

be provisions regarding the right-to-repair scheme, simply that "qualifying repairs" are to

treated as emergencies that are targeted for completion within the statutory timescales. Yet

legal such a perspective is clearly open to criticism from a rights perspective. Ignorance of

legal provisions, for example, entails that staff will be unlikely to advise tenants of their

in rights such as right to compensation where repairs are not completed accordance with the

statutory timescales.357

iv) Security of Tenure

Interviewees tended to possesssome awarenessof legal requirements to establish

relevant ground(s) for action and the need to show reasonablenessif an eviction action was

likely to succeed. Some understandingwas shown also of other remediesavailable such as

interdict and specific implement, although there was lack of detailed knowledge of their

applicationin practice,indeed one staff memberremarking that she thought a Notice of

Proceedingshad to be served"before any court actioncould be raised",for example,raising

an actionfor specificimplement.

It shouldalso be noted that there was almostuniversal lack of knowledgeabout the

changesto law introducedby the Crimeand Disorder Act 1998. None of the interviewees

357It is alsoworth noting that this seniorofficer appearedunaware of numerouslegal provisionssuch as the legal amendmentsto Schedule10 arising from the Housing(Scotland) Act 1988,the tenant'sright to withhold rent, or the obligationto advisetenants annually in writing aboutthe right-to-repairscheme. 246 was aware of the new legal definition of "anti-social behaviour", for instance,nor had they beenfamiliarised with changesto the legalgrounds for possessionof securetenancies under grounds 2 and 7. Similarly, although housing officers had heard of ASBO's, they had extremely limited knowledge of details concerningASBO's, or their possibleimplications in terms of actions for recovery. Given that the changesto possessiongrounds serveto reduce tenants' rights, ignorance of the law by staff may, paradoxically, work in the interests of tenants. Ignorance of ASBO's, though, and of the Scottish Office Guidanceto utilise these ordersprior to taking evictionaction could be detrimentalto tenants'interests in situations where eviction is usedby the landlord as the main remedy.

Another concernmooted by staff was that evictiondecrees are held- and often used- for periods up to one year after the date specifiedin the extract decreeissued by the sheriff court. Most staff were generally unaware of the illegality of this practice, though, undoubtedly confused by the terminology used and believing that eviction decreesgranted allowing tenants to repay debt by instalment did not result in the secure tenancy being tenninated."'

CaseStud Findit

In additionto the interviewproper, area office housingstaff (twenty) were requestedto complete specific case studies to assesstheir answersfrom a legal perspective. The case studiesused are given in Appendix3. "' In assessingthese case studies, the following generalpoints are noted. Firstly, responseswere gatheredat the conclusionof individual

358One senior officer freely divulged, though, that the issuing of NOP's, prior to raising action for decree, was carried out to give people a "wcc bit of a fright". Staff were also generally unaware of the possibility of using small claims proceduresto recover debt ic rent arrears as this was not incorporated into practice as a genuine option for recovery, the service of NOP's - indeed seeking eviction decrees-being used to obtain repayment agreements. 359One interviewce answeredthe casestudies prior to interview but the opinion received to the effect that this seemedlike an examination entailed that this did not recur to ensuregood rapport between researcherand interviewce. 247 interviews that lasted a averageof one hour. In view of limited time available,interviewees were requestedto note the main legal issuesarising, in their opinion,from the casestudy examplesto gauge their overall understanding. Intervieweeswere not expectedto provide legally "right answers"to the casestudies.

Secondly,the findings summarisethe main legal issuesarising in respect of apparentstaff knowledge of the four particular rights under review. i) Accessto Files

Interviewees confirmed that they knew very little about this particular right. This applied at both senior and housing officer levels. As one senior officer remarked:

"This is done by support services. I do not know what information can be given out,

or of any appealrights or legal implications".

In addition, none of the staff had receivedany informAtion on the implications of the Data

Protection Act 1998. ii) Homelessness

Referring to the case study in Appendix 3, the applicantsappear to satisfy the first two

'Hurdles'. The applicantsare homelessas there is no accommodationavailable for the family unit anda priority needexists because of dependentchildren. Intentionality is the next issueto considerin the statutoryprocess.

In assessingwhether the applicantsare intentionallyhomeless, it is important to rememberthat local authoritiesmust satisfyall three elementsof the legal text. To recap:

Was accommodationavailable? Was it reasonablefor the applicantsto continueto occupy this accommodation?Did the applicantsdeliberately do or fail to do anythingas a result of which the applicantsceased to occupy the accommodation?It is also important to rememberthat where applicantsgive up settled accommodationor move to temporary

248 accommodationthe "resultinghomelessness will be intentionalstemming from this deliberate act" (Robson and Poustie (1996) p181). Unless applicants make prior arrangementsto secure settled accommodationbefore leaving available settled accommodation,then, they may be deemed to be intentionally homeless." It should also be noted that tied accommodationmay be settledaccommodation, although this canbe problematicinsofar as it is linked to conditions of employment. Breach of contractual terms that result in accommodationbeing lost may constitute intentional homelessness."'

Given the limited time spent on completion of the case study, findings can be no more than conjectural. Considerationof the written intervieweeresponses suggests, though, that staff reasoning may diverge from legal principles (see below). It is emphasised,however, that this does not necessarilyentail decisionsare adverseto applicants'interests. In one case,for instance,the housing officer asks none of the intentionality questions. Instead, she argues simply that the applicants should be acceptedfor rehousing "because it would be unreasonablefor the family to continue living apart". - In the evaluation as to why staff responses may diverge from legal principles, it is important to note that, although an interview checklist does exist in Council A, examinationof the casefile applications reveals that this checklist is rarely completed. Reasonsfor this can only be conjectural but are likely to relateto issuesalready discussed, namely a) dearthof appropriateinduction and b) lack of details (and regular) training programmes.

In what ways, then, does reasoningabout intentionalitydiverge from law? In one instancea senior officer statesthat checkswith the previouslandlord would be initially carriedout, in particularto affirm "whetherthe housein Sussexis availableand whetheror not it was reasonablefor the familyto returif'. Yet suchchecks would not be relevantif the

... De Falco v CrawlyBorough Council [19801QB 460. - 361Rv NewForest District Councilex p Barter (30 June1992 Unreported) QBD. 249 tied accommodationwas settled, an issuenot consideredby this officer. Indeed,none of the officers consideredinvestigating the natureof the contract to ascertainthe statusof the accommodation,that is, whetheror not it was settled, althoughthe needto assessreasons for dismissal featured in most responses. Finally, none of the interviewees considered all three elementsof the legal test. iii) Repairs

The case study covers the range of statutory and common law repair obligations exan-ýinedearlier in this Chapter. In evaluatingthis casestudy only one senior officer could state accurately Council A's repair obligations under Schedule10 and the statutory right-to- repair scheme. Of principal concern, though, was the apparent ignorance betrayed by the specialist maintenanceofficers in respect of the legal provisions. For example,neither of the two maintenanceofficers were awareof the tenant'sright to compensationunder the right- to-repair scheme,nor aware of the tenant's rights to seek damagefor breach of contract in the eventof landlordfailure to complywith Schedule10 requirements.In addition,neither officer wasaware of the commonlaw right to withholdrent. iv) Security of Tenure

Two case studies were used that dealt with anti-social and arrears issues respectively.

Interviewee responsesof the eight housing offices suggestedthat knowledge levels were higher,although the level of knowledgewas subjectto variationdepending on suchfactors as staff seniorityor qualificationsheld by staff. For example,in addressingthe anti-social behaviour,the following remedieswere noted(number of staff in brackets): implement(4); interdict (5); ASBO (1); notice of proceedings(7).

None the the hand, Council A its of staff , on other examinedthe possibilityof using powers to obtain a compulsory transfer under ground 16, or using other more specialist

250 legislation to resolve the particular problems,for instance,the provisions of the Matrimonial

Homes (Family Protection) (Scotland) Act 1981. It should be noted, though, that one

officer did refer to the DangerousDogs Act 1991 to addressthe 'dog problem'.

In considering the arrears case study, intervieweesappeared to be aware of the need to

satisfy both a) the ground and b) the reasonablenessof the action in seekingan eviction

decree. For instance,staff referred to the court's concern over factors such as vulnerability

of children and family welfare, entitlement to benefit and whether the council had provided

relevantadvice. As oneofficer stressed:

"The onus is on the council to prove that they are being reasonable."

Yet ignorance of legal provisions was also evident in their responses. All housing staff

were of the opinion, for example,that taking court action under a variablesummons to

obtain an 'Instalment decree' was useful "to give tenants the opportunity to pay off the

arrears balance,whilst retaining their tenancy." As highlighted earlier in this Chapter, staff

were unawarethat - if successful- the court actionunder the variablesummons for eviction

cum payment actually terminated the tenancy. It is also worth mention that none of the

intervieweesconsidered raising debt only actionsto recover rent arrears,an option that

could safeguardtenants' interests by preventinghomelessness.

Having analysedCouncil A practice it is now apposite to refer to the issue raised in

Chapter2 concerninglandlord avoidance techniques where it was highlightedthat private

sector landlord avoidancetechniques have beenvaried and often deliberate. As argued, . Council A organisationalpractice has not been developedin accordancewith the principles

of systemstheory and,as a result,the core organisationalvalues that imply commitmentto

rights implementationhave failed to be transmittedinto administrativepractice. Failure to

implementservices holistically, however, is tantamountto neglectof rights implementation,

251 although such neglectis different in kind from consciousavoidance techniques used by private sectorlandlords to circumventtenants' rights under the Rent Acts. It shouldbe emphasised,of course, that this premise does not exclude the possibility of intention by individual managersto exclude relevant rights information from Council A documentation, for example, the exclusion of information concerning the right to repair scheme. In local authorities, then, ineffective rights implementationoccurs, not through deliberate avoidance, but because of under-developed managementstrategy that neglects to deliver services systemically. This point again serves to consolidate Loveland's position that housing practicemust be evaluatedin contextand - of particularimportance from the perspectiveof rights implementation - from the context of "the (non)-professionalisation of housing administration" (Loveland (1995) p37).

Summary

Council A has implementeda fully decentralisedorganisational structure with housing staff carrying out their duties in a generic fashion. Interviews with staff suggests dissatisfactionwith current levels of servicesprovided, primarily as a result of heavy workload that has been exacerbatedby the developmentin Council A of a performance management culture that requires staff to collate statistical data for organisational. measurementpurposes. But assessmentof this issue from a rights perspectivesuggests that workloadhas little effecton rightsimplementation with the exceptionof homelessnesswhere workload may prevent staff from carrying out sufficiently detailed inquiries.

Researchhas indicated,on the other hand,that effectiveimplementation of rights in

CouncilA hasbeen affected by a variety of inter-connectingfactors. Lack of management supportand dearth of clearpolicy andprocedural systems have been shown to be significant:

252 the absenceof systems in the case of access-to-files,for instance, or the inadequacy of existing systems as in the right-to-repair scheme. But equally concerning from a rights perspective is the lack of information about legal fights that is provided to the public.

Current Council A working practiceshave suggesteddeficiencies, too, notably in the area of homelessness,although deficienciesare lesspronounced in security of tenure matters.

Lack of staff knowledge arising from inadequatetraining programmesappears to be a key element in ineffective rights implementation, although it is emphasisedthat levels of knowledge vary among individual staff members.Access to appropriate rights information may, therefore, hinge on accessingparticular individuals within the organisation.Yet none of the aforementioned factors are by themselvessufficient to explain rights implementation.

For effective rights implementation demands a systemic approach to management, an understandingthat administrativeprocesses can be successfulonly if strategic principles and objectives are applied coherentlyinto practice. And analysisof Council A practice reveals a clear deficiency in the application of organisationalsystems theory..

253 Chapter 4: Leeal Riphts Implementation - Council B

"Thereis a commitmentto staffdevelopment and improved performancethrough the PerformanceDevelopment Programme andthe Investorsin Peopleaccreditation which is currently beingsought. "

(Accounts CommissionDraft Report to Council B (2000))

(RegardingManagement Style)

"It's basedon fear rather than working together in partnership. Staff at lower levels are not valued at all (regardedas having) no contribution to make."

(Council B senior officer interviewee)

254 Introduction

This Chapter involves an assessmentof the same range of legal rights issues as were evaluatedin respect of Council A. This is done to enablea comparative assessmentof the effectivenessof rights implementation in the two councils. As per the initial study, the

Chaptercomprises three key elements:the assessmentof councildocumentation in respect of the four rights; the examinationof Council B practice regarding these rights by scrutiny of file informationand feedbackfrom interviewees;and the identificationof key factors affecting rights implementation.

Council B: A Profile

Council B was createdas a result of Local Governmentre-organisation and involved the merger of a similar number of predecessor district councils as Council A. At this point

Council B housing stock represented 35% of the total housing stock of which owner

is occupation was the dominant tenure form. As with Council A, the actual figure omitted to ensure anonymity. With respect to the two area offices under review, one is primarily

The urban in nature, the other characterised by a mix of urban and rural settlements. housingstock that is managedby the two officescomprises over eleventhousand, or over

25% of total Council B housing stock." This stock is extremely varied by way of type and design,although flatted accommodation is the majorityform.

The area offices have decentralisedtheir housingmanagement services with housing officersfulfilling a genericrole savefor rent arrearsand maintenance functions that are dealt with by specialiststaff. A total of twenty eight housingstaff were interviewed. This

represents c4% of all housing staff. A substantial proportion of senior officers were

362Figures as at Local Governmentre-organisation. One of theseoffices divided into two officesas the researchwas nearing to its completion. 255 interviewed, as well as over 10% of area office housing staff in respect of the two area offices under review. The majority of area office staff interviewed were housing or maintenance officers, as opposed to senior officers. One Council B lawyer was also interviewed.

Organisational Culture

Organisationalculture has been shown to be a potentially important influence on effective rights implementation. Yet if cultural values are to be achieved,every "organisation needs to understandits environment,its task, its workforce and its relationshipwith its users"

(Flynn (1990) p151). In short, cultural values must be integrated through service managementdirection systemicallythroughout all organisationalpractices. Failure to do so, as Flynn aptly remarks,will createtension betweensenior managementand housing officers, for instance,in those situations where "housing managementoffices are establishedas profit centresand are given targets relating to rent arrears,rather than providing help for tenants in

difficulties" (Flynn (1990) p 150).

With reference to Council B senior managementsupport for a culture supportive of rights, this appearsto be both explicit and implicit in council documentation. In one

strategicdocument, for instance,Council B statesthat:

"We will plan our servicesbased on your needsand produceservice development

plans.... and we will improveyour awarenessof your rights and of the help which

you can get from us to protect those rights."

Council B's Best Value strategy expressescommitment to making the council more responsiveand accountable to its citizens. In anotherstrategic document, Council B asserts that citizensshould receive:

256 "detailedinformation about service standards, along with what canbe expectedfrom

the council,and how servicescan be used,and redress if thingsgo wrong."

Yet scrutiny of the corporate council strategy indicates that, albeit supportive of citizenship issues, the Best Value strategy that underpins all service activities does not explicitly provide for commitment to rights implementation. Indeed, far from focusing on rights issues,strategy concentratesheavily on fiscal and businessobjectives to ensure that council services are exercised efficiently and satisfy stringent audit requirements. This perspective,then, is wholly in accord with the developingNPM ethos discussedin Chapter 2 that penneatescurrent Local Governmentservice provision, as well as mirroring the Council

A findings. Further, it highlights again the discrepancythat can occur between espoused organisational cultural values and actual practice that was discussedin Chapter 2 in the critique of ideal Organisationaltypologies.

But it was duringthe fieldworkthat seniorinterviewees alluded to other factorsthat - in their view - are influential in rights implementation,factors that stem primarily from senior staff motivationsor personalcharacteristics. And, althoughfurther detailedresearch would be required to corroborateopinions aired, it is worth noting two specific factors, one personalthe other organisational.

The personalfactor that hasbeen suggested as beingdetrimental to the developmentof policies in general and commitment to rights in particular is the lack of co-operation at seniormanagement level. As onesenior officer hasremarked:

think there was a power strugglein (HQ)... they were playing games,point

scoringoff oneanother. There's no teamspirit. Theydon't act as a team."

The principal reasoncited in explanationconcerns that of personalaggrandisement, professionalmotivations based on careeradvancement, as opposedto a focus on rights

257 developmentorganisationally. To quote the sameofficer again:

"I think it's down to personalitiesat senior managementlevel having their own

Wanting to be in to drive is happening." agendas. control. ... wanting what

The organisationalfactor that hasaffected the developmentof a rights orientedculture can be partly attributed to the extensivechanges that have occurred within Council B. The merging of four major councils at the point of Local Governmentre-structuring in 1996, for instance, was followed in 1997 by a further internal re-structuring that led to the amalgamation of the hitherto separate housing and technical services. This has been exacerbatedby re-structuring at senior managementlevels that has resulted in the loss of key posts, for example, the removal of two senior officers from their policy-making role has arguablybeen detrimental to rightsdevelopment.

In probing this matter senior staff were questionedfurther regarding a possible dichotomy existing between commitment to rights as implicit in corporate policy documentationand implementationof theserights. And the responseof one officer in particular should be highlighted. In this officer's opinion, Council B documentationis essentially image-orientated,espousing strategic objectives and principles in glossy fashion while lackingsubstance. "' To quote:

I have to say that we talk a damnedgood game. But we don't deliver on it.

Underneathit's chaotic. For example,we saywe get over 90% of our repairsdone

on time, but that's only the repairsthat areprocessed". "'

Yet failure to accordadequate support for rights at a seniorlevel - albeit a primary causalfactor in explainingdeficiencies - is not a sufficientfactor. Like the CouncilA study,

363An externalauthority employee described Council B at a recentseminar as being the "cappuccino authority". 364An allusionto the processof not reportingon repairsoutstanding that havebeen added to the council's cyclical repairsprogramme involving eg roofingworks. 258 many factors are relevant. To thesethe thesisnow turns.

161 Policies and Documentation

In their major study concerning how effectively English councils managetheir housing,

Legg et al (1981) highlighted that:

"... neither the tenancy agreement(or conditions of tenancy), nor even the 'internal'

policy statements of housing departments define clearly enough the respective

obligations of both landlord and tenant" (p5 1).

More recently, though, major Scottish researchhas suggestedthat information provided to tenants has improved. (Atkinson et al (2000); Scott et al (2001A)), although it should be reiteratedthat this researchdid not involve detailedanalysis of all housingmanagement policy documentation to ascertain if it was promotional of rights. The principal point to

note, though, is that failure to integrate accurate legal rights information into policy

documentation is likely to impact negatively on effective rights implementation becauseof

staff ignoranceresulting from such omission. CouncilB documentationis now assessed,

then, to evaluatefights informationconcerning accessto files, homelessness,fights of

repair,and securityof tenure. In carryingout this assessmentreference will be madeto the

Model Mosta TenancyAgreement that providesdetailed coverage of tenants' rights to

which Council B purportedly adheres. This commitment to the principles of Mosta was

notified to housing staff at training seminarscovering the introduction of the estate

managementpolicy and the Council B tenancy agreementin 1999. This comparison will,

hopefully,shed light on CouncilB's commitmentto rightsimplementation.

The preliminariesnoted in respectof CouncilA policy developmentapply equally in the caseof Council B. 259 a) Accessto Personal Files

Information in relation to accessto files is containedin a variety of Council B documents.

At a corporate council level, for example, it is mentioned in the Employee's Code of

Conduct." And, with specific reference to housing documentation, the legal right is mentionedsans Mail in the council's allocationspolicy where it is also noted succinctly:

"Applicants wishing to exercisethese rights should contact their local housing office

to make appropriate arrangemente'.

Yet this last statement is misleading. For there is no formal Council B policy or procedure in place by which tenants rnight exercise their right." Nor is any written information produced by way of leaflets or other publicity material to advise tenants of their right. " And consideration of Council B policy documentation highlights two further concerns. The first concern is that the right is not mentioned in any of the other main housing policies such as estate management,homelessness, or rent arrears. In view of the fact that such documentationis influential in providing staff with relevant knowledge of legal provisions, the omission of such information is likely to impact negatively on staff ability to advise tenants on their rights. Again, omitting referenceto legal rights entails that publicity materials made available to tenants concerning housing management policies will not generallyincorporate any information about such rights.

The secondconcern is the omissionwithin the CouncilB tenancyagreement of the Mosta. contractualprovisions concerning the accessto files rights,an omissionthat occursdespite

366Albeit that this is a passingreference only to the Accessto PersonalFiles Act 1987. 367One of the predecessorcouncils covered in the studydid havea formal systemin placebut this had not beenadopted by CouncilA. It is alsoa matterof concernin that staff interviewed(and who wereformer employees)were not awareof this system. 3' This doesnot applyin the caseof socialwork which hasproduced leaflets for clientsas per their rights of access. 260 Council B's professed adherenceto the principles of this Agreement."' Nor should it be forgotten that such rights deletion is at variance with the Mosta. repudiation of "cherry picking7, a repudiation derived from the perspectivethat:

"... omission of paragraphsin Mosta, except to deal with such local variations or to

properly respond to the local consultation process,will only obscure the true legal

position to the detriment of both landlord and tenant" (CIoH (1998) p6).. b) Homelessness

Unlike Council A, Council B has developed a written homelessnesspolicy. Prior to

examinationof this documentto assessto what extent it incorporatesrights issues,the

development of this policy is first explained. Council B's homelessnesspolicy was one of

the earliest policies to be developedby the council, its principles derived primarily from one

of the predecessorcouncils. "' And the main reasonsfor early policy developmentwere

threefold, namely a) the existenceof a chief officer, supportedby a working party,

specialising in homelessness,b) the well-developed predecessorcouncil policy, and c) the

acceptanceof most elementsof that policy by the chief officer. Following acceptanceby

Council B of this policy, the sameofficer then embarkedon the developmentof an

establishedand coherentset of homelessnessprocedures that would encompasslegal and

good practice guidelines, culminating in late 1998 with the production of a comprehensive

and detailedset of homelessnessprocedures. "' Theseprocedures, though, have not yet

been introducedfor two reasons. Firstly, the priority afforded to the developmentand

introductionof other council policies. Secondly,examination of the overall homelessness

Mosta, section 8, clause 8.2 (CloH (1998)). Council A adherenceto the principles of Mosta was notified to housing staff at training sessionssurrounding the introduction of the new Council B tenancy agreement in 1999. 370The other major policy that developedearly in the life of Council B was rent arrears. 371In order to overcomeworkload pressuresfacing the working party charged with this task, the assistance of another specialist senior officer and a researchstudent on placement from Heriot Watt University was sought to bring the document to fruition. 261 1999.372 service by a Best Value working party that commencedfrom Autumn A factor involvingjob re-organisationis alsorelevant and this will be discussedlater.

Consideration of Council B's homelessnesspolicy suggeststhat it does indeed comply with legal principles and good practice guidelines. With respect to legal matters, for example,the documentclarifies in detailthe legalprocess relating to the "four hurdles"and elucidates comprehensively the complexities and interpretative issues surrounding the concept of homelessness,priority need and intentionality. With regard to good practice, on the other hand, the council policy meets Code of Guidance recommendationsby incorporating an internal appealprocess for applicantsaggrieved by adversedecisions. "'

One concern regarding the new policy that should be highlighted at this point, though, relates to the absenceof any publicity materialsavailable to homelessapplicants, an omission that conflicts with both corporate council policy and the Code of Guidance. Corporate policy points out; for instance,that: "We will publish information about the level of service you can expect to receive""'; while the latter recommendspublicity of service provision to involve, not simply a wide variety of locations, but also to utilise a range of media systems, includingboth written (leaflets,posters etc) andoral (localradio). "' c) Rights of Repair

Council B's written documentationconcerning repairs issuesis containedin two principal documents,namely a) the tenancyagreement and b) the draft repairspolicy. Each of these documentsis now assessedin turn.

372it shouldbe notedthat. at yearending 1999,homelessness procedures had still to be harmonised,the areascorresponding to the predecessorcouncils each operating their own homelessnessprocedures as governedby the newpolicy. 373The threestages involving two officer and onecouncil member stage. Internal appealssystems arc currentlybeing reviewedby a humanrights working party to assesshow suchpractices are to be evaluatedin the light of legislativeprovisions. 374Council B: "A Guideto Consultatioif'. 371Code of Guidance,paragraph 3.7 (ScottishOffice (1997)). 262 On a positive note the Council B tenancy agreementis consistent with the legislation insofar as Schedule 10 repair obligations are concerned.Yet again, though, scrutiny of the council's tenancy agreementreveals marked divergencefrom the Mosta document despite

Council B's assertionthat the former is basedon Mosta. For example,the entire clause in

Mosta relatingto dampness(including condensation) that contractuallyobliges the council landlord to effect dampnessrepairs, as well as repairingor replacingheating systems that may be causingthe dampness,has been ornittedfrom Council B's tenancyagreement. "'

And a similar omissionhas occurredin respectof clause5.14 of the Mosta document concerningcompensation payable to the tenantwhere the council damagesthe house(or tenant's property)in connectionwith inspections.But, and most relevantfor the current discussion,important information concerningthe statutory right-to-repairhas not been incorporatedinto the council'stenancy agreement. Thus, althoughthe right to call in an alternativecontractor is noted, the right to compensationhas been ornitted, as has the commonlaw right (contractualisedin the Mosta document)to carry out repairsand deduct costsfrom rent payments."'

And a secondconcern relates to the statementwithin CouncilB's tenancyagreement to the effect that: "Details of the regulationsand approvedcontractors are availablefrom any local areahousing office", an assertionthat seemsto belie the fact that there is no formal systemcurrently in placeto regulatethe right-to-repairscheme, nor for that matter.are there any approvedcontractors in place."' Indeed,discussions with the officers responsiblefor

316Mosta, clause 5.6 377Another significant discrepancybetween the documentsis the omission of the right to complain to the ombudsman. The extent of divergenceis indicative of intent, an issue that is examined again in the section involving detailed assessmentof rights implementation. Omission of specific rights is marked throughout other Council B Policy documents,for example, fleeting referenceis made to assignation rights in the Tenancy Agreement, but omittcd altogether from both the estatemanagement and allocation policies. 37' This refers to Council B as a whole. One predecessorcouncil had partly implemented the scheme although not fully. 263 monitoring also confirmsthat the right-to-repairscheme is not audited despite Scottish

Executive monitoring requirements. And the words of one senior officer involved in developing the new Council tenancyagreement are most revealing vis-i-vis possible reasons for the omissions:

it's been it's would say again pragmatic and what you can sell politically .... not

becausewe want to keep rights from them (i. e. tenants)."

But this assertionsimply begsthe question. For why are councillors reluctant to promote rights? Indeed,supposed reluctance by councillorsis more likely to be a mask of senior (p 42) officer reluctancesince - to reiterate a point made in Chapter2 regardingthe is heavily variability of councillorinvolvement in policy-making- the final policyform often dependenton officer persuasion.And, as wasthe casein CouncilA, discussionwith senior in officers revealedthat councillorinvolvement in the policiesunder review this study was

extremelylimited, the contentof suchpolicies essentially reflecting senior officer values.

Finally, the council has produced only one leaflet that advisestenants of the right-to-

B repair scheme, a leaflet that is examined in detail in the section concerning Council

practices."'

The initial draft repairs policy was issued for staff consultation on 13 January 2000.

Reasonsfor the delayin developingsuch an importantdocument are variedbut includethe

following: lack of unifiedcomputer systems in respectof repairs; long-termabsence of the

seniorofficer on accountof sicknessand the person'snon-replacement; priorities afforded

to other housingactivities; and - arguablyas a corollaryto the initial points - inadequate

organisationalpreparation. As one senior officer points out, for instance:

"One of the biggestmistakes we makeis not gettingall the skills and expertiseat our

This leaflet suffices to meet the legal requirement that securetenants are to be notified of this right annually in writing. It is 'hidden' at the back of rent increaseinformation, however, and is not easily discernible. 264 disposal when developing a policy. The other big mistake is we don't involve our

customere'.

In explaining underlying reasonsfor lack of devolution, the officer clarified that policy development is controlled by a small group of staff who prefer not to devolve work for

"purposes of control".

The final draft repairs policy was issued for senior staff consultation in February 2001.

The section that deals with the right-to-repair scheme is summarisedin six lines under miscellaneousprovisions. The document ornits any referenceto compensationpayable to tenants,although it doesstate that full detailsof the schemeare to be providedin a separate leaflets,although this leaflethas not yet beendrafted. d) Security of Tenure

issues,Council B's Turning now -to the question of rights concerningsecurity of tenure rent arrearsand estate management policies are each assessed in turn. i) Rent Arrears Policy

The rent arrears policy was the first major policy to be implemented,its main themes derived from one of the predecessorcouncils, although it has now developed greatly in terms of both functionsand procedures,for instance,the expansionof the moneymatters servicethat strivesto provide comprehensivefinancial advice to clients to prevent legal actionsagainst their home,as well as the establishmentof a "Q&A serviceintended as a ccone-stopshop" to providedetailed advice and ensure clients are referredto the appropriate service.

And considerationof CouncilB's rent arrearspolicy showsthat it appearsto comply with both legislativeand good practiceguidelines in respectof rent arrears."' Key principles

Indeed, the Accounts Commission (2000) commends Council B as being to the forefront of good practice. 265 enshrinedin the Policy Statement,for instance,include the following:

be developed, including - preventative debt methods to the provision of

comprehensivebenefit and welfare rights information; individual - the utilisation of a variety of rent collection methods,tailored to

circumstances; be - managementactions, including letters and visits, to comprehensiveto ensure

that subsequentlegal actions satisfythe principle of "reasonableness";`

implementation - arrearslevels and trends to be monitoredregularly through the of

a performanceindicator framework that satisfies legal and Best Value

requirements."'

With regardto informationto tenants,on the other hand,a wide rangeof publicity is disseminated,including information concerning entitlement to housingand welfarebenefits, thus providingtenants with informationinfluential in safeguardingtheir legalrights to retain their tenancyshould arrears accrue as a resultof materialhardship. ii) Estate ManagementPoljýýy

Council B' estatemanagement policy was operationalisedonly from late 1999, the delay attributable to a number of factors: the complexity and breadth of issues under consideration,for instance,difficulties in policy unification becauseof the variety of I individual policies existing prior to Local Government re-organisation; internal . organisationalrestructuring that witnessed (as in the case of homelessnesspolicy development)changes in seniorpersonnel responsible for the developmentprocess; securing political agreementto the new policy and securingapproval via the various tenants' fora."'

381The word "reasonablenese'itself, though,is omittedfrom the policy statement. 382The requirements of the Accounts Commission, for instance, to monitor total arrears as a percentageof total rental debit. 383The council's tenant participation policy contains details of consultation arrangementsbetween the council and tenants. 266 As will be shownlater, the relativelylate introductionof the majorpolicies of allocations and estatemanagement at the sametime indicateissues of strategicconcern, as well as having resulted in a possiblenegative impact on rights implementationin view of the extent of the changescoupled - as we shall see - with inadequatetraining. "' As one housing officer confirmedat interview:

"Basically I think the general concern for housing staff - and I probably speak for a

few people when I say this - is that basically things havejust been brought in all at

the sametime. "

While another in even more critical tone opinesin respectof training:

"It's One that I have is it happens ridiculous . other major concern as well that all at

the sametime. Within two or threeweeks we had to havetraining on allocations,

training on estatemanagement... implement all the differentchanges. It's beenfar

too much,too quick and I think we've only really touchedthe tip of the icebergif

you like as far as training goes. I think we need a lot more concentrating on one

thing at a time, especiallythe legal sort of issues. I feel very, very lacking in that side

of it."

With respect to tenants' rights issues in respect of legal actions implemented by the council to deal with anti-socialbehaviour, the following points are noted. Firstly, and in compliancewith legal and good practice guidelines,anti-social behaviour is dealt with proactively by developing sound housing management practices to prevent problems occurring,for instance,avoiding the creationof difficult-to-let areasthrough unplannedor inappropriate allocations, or forging comprehensiveinter-agency networks to tackle problemsjointly.

384 As onesenior officer notedin respectof the EstateManagement Policy training for example:"Very poor. Very, very poor." 267 Secondly, Council B- and again in compliancewith legal and good practice guidelines- utilises severallegal remedies to tackle anti-socialbehaviour including interdict, implement, asbo's, as well as utilisation of other pertinent legislation, for instance,the Civic Government

(Scotland) Act 1982."'

Finally, the developmentof the Council B policy is undoubtedly a positive development since it should encourageconsistency of practice throughout operational activities, a factor itself to be monitored via the implementation of a number of performance indicators to assessboth quantity and types of actionsbeing raised and remediesutilised.

Prima facie, then, the Council B policy appearsto encompassthe main principles outlined in legal and good practice requirements, although one issue appears to be problematic, namely the inadequacyof information materialsprovided by Council B to tenants concerning

eviction actions and remedies. No leaflets on ways of challenging eviction actions are

publicised,for example,and lack of suchinformation is arguablya majorinhibiting factor in

effective rights implementation.

Summary

Evaluation of Council B documentation in respect of the four rights under review

suggests a number of concerns. With regard to accessto files, for instance, no policy

actually exists, nor is informationabout the right disseminatedpublicly. Homelessness

policy, on the other hand, despite encapsulatinglegal principles and good practice

guidelines, has neither been proceduralised nor publicised widely. The right-to-repair

schemeis given scant regard by Council B in its existing policy and publicity documentation,

althoughindications are that it may havea more prominentplace within developingrepairs

385For example,dealing with pet problemssuch as fouling underthe Civic Government(Scotland) Act 1982,s48. 268 policy. Finally, and more positively, Council B's policy documentation concerning security of tenure issueshas greater affinity with legal rights, although publicity materials concerning remediesto ward off evictionare under-developed.

Implementation of Rights

Evaluation of the major studies of housing managementpractice, particularly in the

Scottish context, has revealed that issues concerning legal rights implementation at the

administrative level have been the subject of limited scrutiny. And, as Hudson (1997) has

emphasised:

"In social sector agencies research studies have tended to see 'implementation

deficit' as a problem of top-level policy makers" (p393).

This focus, however, represents a major gap in theory given the importance of

administrative process in explaining rights implementation. This section, then, - coupled

with the similar analysiscarried out in Chapter 3- servesin part to addressthis theoretical

imbalance.

This section turns, then, to assesshow effectively Council B implementsthe four specific

rights under consideration.As with the CouncilA study,the focal point of researchis to

identify practices that may not satisfy legal requirements,albeit that practices contrary to

good practice are also noted as appropriate. The main sourcesof information used to assess

rights implementationinvolve assessmentof one hundredand twenty six tenancy files,

386 proceduraldocumentation and feedback f rom interviewees.

a) Accessto Files

It has alreadybeen noted that CouncilB has no formal policy in placeregarding this

386 A total that comprisestwenty anti-social files, thirty five arrearsfiles and seventyone files involving refusedhomelessness applications. 269 particular right. It is also emphasisedthat no formalised procedures exist either, the few requeststhat are actually receivedbeing processedin an ad hoc fashion. Further, there is no monitoring of requests received, nor do tenants receive any publicity materials from the council about this right. Clearly, then, Council B has failed to develop systemsthat facilitate effective rights implementation, albeit - as in the case of Council A- absence of such systemsis not synonymouswith unlawful practice. In explaining this deficiency, one senior officer provided the following explanation:

"It's very complex and whilst I think there's a case for telling people what their

rights are, in some areas you don't want to encouragethem so you don't want to

makeit too easyfor themthen because it is so complicatedand there is a lot of work

involved in purifying a file to give people accessto it. "

While another.perspective is offeredby onesenior officer who states:

"I don't blame the council wholly. A lot of tenantsaren't really interested(in

rights)."

Assessmentof Council B practice is also illuminating insofar as it shedslight on the issue

as to how far current practice complieswith Scottish Office guidelinesvis-A-vis data

recording and how failure to meet these guidelinesmay impact adverselyon tenants' rights.

This assessmentis carried out below but first, though, two generalpoints in respectof

Council B filing systemsare noted."'

The first point is that housingmanagement data is mainlyheld in paperformat within

tenancyfiles and often in differentlocations because of the split in organisationalfunctions

between housing managementofficers and specialist rent arrears officers; this applies

387Filing systemsare. in effect.a manualdata base. Claritv of orderis, therefore,crucial for identification and retrievalof data. A witty, thoughpoignant reminder of this is containedin the following critique. I don't like clutter, at minimum it may say that the executive is disorganiscd, it may say something about lack of clarity and it may say he is not actually coping with the job" (Treaccy (1991)). 270 despite the introduction of comprehensive computer systems throughout Council B.

Reasonsfor the preponderanceof paper documentationare complex and beyond the scope

but include inter the housing for example, of this study , alia, nature of managementwork, recording conversationsduring face to face interviews, and retention of the many paper forms and standardletters used by housing staff."'

The secondpoint is that no unified filing systemoperates in Council B with the result that there is no systematicrecording of data,varying methods of data collation and actualdata collated amongoffices. Indeed,no guidanceis given to staff as to how best to collate informationto meetpossible requests from tenantsfor accessto files, nor for that matterto ensure extraction of clear and understandableinformation for either report or audit purposes.

ScottishOffice guidelinesstress that informationheld by local authoritiesshould be easily accessibleand capableof disseminationwith the minimumof attentionshould a tenantseek to accesspersonal files. The haphazardfiling systemsof CouncilB where individualfiles containa hodgepodgeof informationcertainly fail to meetScottish Office guidelines.

But current practicewithin CouncilB breachesnot simply the guidelines;it also has serious implications for tenants' rights. For example, Council B rent arrears officers currently prepare casesfor court action - and assessthe reasonablenessof such action - by primarily on the information held on their particular file. Other tenancy information held housing officers is not automatically consideredwhen court actions are being consideredfor breach of tenancy on grounds of rent arrears. Yet failure to evaluatethe reasonablenessof pursuing court action based on assessmentof all personal data held on file by the local

authority may be detrimental to tenants' interests, particularly when considered in context.

118One staff memberalso noted during the interviewprocess that inadequatetraining on how to use computersystems created reluctance to log dataand thus greater reliance on paperwork. 271 For instance,the fact that many tenantsfail to defend eviction actions involving rent arrears

(Mason et al (1995)), or are ignorant of their right to accesspersonal file data in preparation

of a defenceagainst their landlord's claim (Mitchell (1995)).

Prior to consideration of homelessnesspractice, it is worth digressing to note that

assessmentof documentationto evaluateaccess to file issueshas cast light on other unlawful

practices that seem to be occurring within Council B and one situation in particular is

worthy of mention. In Case7, for instance,a notice of abandonmenthas been servedon the

tenant despitethe fact that the houseis still occupied,an action that clearly breaches

statutoryprovisions. "' Again - and arguablyin breachof the legal requirementsof being

reasonablysatisfied that a househas been abandoned prior to serviceof notice- the housing

officer hasnoted:

"called back N/A (no access)- spoketo neighbourwho said she thinks she's still

therebut hasn'tseen her for a while. Servedan abandjust in case. App (appeared)

Monday 16.12.96W' (at which point the notice was cancelled).

b) Homelessness

This section of the thesis evaluatesCouncil B homelessnesspractice in the light of legal

requirements. As with the Council A study, reference is made to good practice issues as

appropriate. Prior to carrying out this evaluation a statistical overview of the data to be

assessedis given.

Quantitative Data

With referenceto numbersand types of applicationsa total of seventyone homelessness

applicationshave been assessed for the period January1999 to October 1999; this figure

comprisestwenty six and forty five applicationsfrom eachof the two areahousing offices

389The Housing (Scotland) Act 1987, s 49. 272 underreview. Applicationsassessed are those where the decisioninvolved refusals in order to ascertainwhat concerns(if any) are discernible."O Reasonsfor this method were explainedin Chapter 3.

Household Profiles

Household data in respectof applicationsreceived is often incomplete, although research has provided some general information about household composition shown in Table 5 below.

Table 5: Household Profiles of RefusedHomelessness Applicants

Category of Household Single Single Partners Female& Male & Partners& Total Female(%) Male (%) (%) Child (%) Child (%) Child (%) 9(12.6) 32(45) 2(2.8) 16(22.5) 5(7) 7(9.8) 71

(Source: Council B Area Housing Office Files)

GeneralPatterns

Consideration of file data reveals the following patterns. Firstly, almost half of all applicants refused comprise single males. Secondly, examination of the seventy one cases indicates that only a small percentageof cases reach either the intentionality or possible referral stage. Information gleaned from the data suggests,for instance, that only ten, or

14% of cases,involved intentionality considerations. Thirdly, all inquirieswere dealtwith by housing officers who interviewed applicants thus satisfying Code of Guidance recommendationsin this respect.

Council B's homelessnesspolicy statescategorically that its primary aim is to meet legal provisions,as well as endorsethe principlescontained in the Codeof Guidance.This section

"0 Thesefigures represent 40% and 39%respectively of reftisedapplications in respectof the two offices (onehundred and fourteenand forty five). Total homelessnessapplications lodged for the year 1998/99 wereone thousand nine hundredand seventyfour, of which numberone thousand two hundredand seventyapplications were accepted as being statutorily homeless. In 1999/00,the correspondingfigures are onethousand nine hundredand sixty and onethousand two hundredand nine. 273 in delivery, is, now addressesthis matter by assessingwhat actually occurs service that whether the objectives of Policy are being met in practice. In carrying out this assessment, the samerange of issuesexamined in the Council A study are evaluated. i) Inquiries

Inquiries are an integral part of the legal processinvolving homelessnessapplications.

Despite the dearth of insight provided by primary legislation into the extent of inquiries

issues be necessary, the Code of Guidance recommends a fairly broad range of to

considered,with the onus of assessingwhether an applicant is homeless(or threatenedwith

homelessness)resting with the local authority. Clarification regarding the extent of inquiries

to be made has in part been given following Bayani where it was noted that inquiries must

inquiries be necessaryto enablea local authority to make a decision."' In addition, although

be detailed should not be too elaborate(nor of CID-type level), inquiries should sufficiently in to enable a lawful decision to be taken (Robson & Poustie (1996)). Finally, conducting

inquiries, it seemsto be necessaryto ask questionsthat are correct, asking wrong questions

liable to render decisionsunlawful. "'

The salient point to note in respectof inquiries carried out in the Council B sampleis that

inquiries tend to be minimal and, it would appear,often fail to comply with legal provisions.

In Case72, for instance,the decisionletter refusing the application is dated exactly the same

date as the received application, the latter mostly incomplete and unsigned by the applicant,

clear indications that few (if any) inquiries were conducted to assess the applicant's

homelessness."' Again, in Case 121, the applicant was simply referred back to her previous

council authority in Manchester without any checks apparently being made as to why the

391Rv Royal Borough ofKensington and Chelsea, ex p Bayani, (1990), 22 HLR 406, CA. 392Wilson v Nithsdale District Council. 1992, SLT 1131. 393Possibly becauseof the perceived status of this applicant, ie a single 31 year old male. Other examples of the numerous Caseswith inadequateinquiries include Cases73,76,79,82,85,92,94,101,106,109, 115,121. 274 applicantleft Manchester,thus the powerto exercisediscretion in termsof referralswas not exercised.As in the Caseabove, the decisionletter was againissued on the samedate that the applicationwas receivedand assessmentof the data availablereveals no checkswere recorded. ii) Homelessness

As clarified in Chapter 3, homelessnesshas a specific statutory definition. Consideration of Council B's homelessnessprocedures suggests two concernsthat might impact adversely on rights implementation."' The first concern is that no systematicadministrative system is currently in place to ensurethat homelessnessapplications are assessedprocedurally in line with legaldefinitions and requirements. Indeed, an internalreport hasnoted"':

"The arrangementsfor the provision of homelessnessissues vary across Council B in

line with practiceunder the precedingauthorities. This hasresulted in servicesbeing

providedin a rangeof differentways and to differentstandards".

And, with referenceto specific standardsof servicedelivery, an interim report highlighted that:

"externaladvice organisations indicated that they felt staff were not conversantwith

relevant legislation... and it appearsthat usual practice frequently replaceshomeless

legislation to the detriment of the applicant".19'

The secondconcern relates to the fact that, at leastoccasionally, inadequate checks seem to be carried out to assessreasonableness of occupyingaccommodation, or whether occupationof that accommodationmay lead to violence. Three exampleswill suffice to

394Although staff attitudesare not beingassessed as a factorin rights implementation,research undertaken by a studentplacement raises concerns. In onearea office, for example,a seniorofficer is quotedas saying: "I find offering temporaryaccommodation in Glasgowto be the mostcffective deterrent that we have" (McKeating(1998)). 395Council B BestValue ServiceReview - HomelessnessServices (Final Report). 396 CouncilB BestValue ServiceReview - HomelessnessServices (Interim Report). This statementstems from a criticism raisedby Shelter. 275 illustrate this point. In respectof Case61, for instance,the applicantis advisedto obtain proof of separationbefore homelessness can be assessedand no checksare carriedout in terms of reasonablenessto occupy. It shouldalso be notedthat this adviceby the officer concernedruns counter to both the Council B policy and the Code of Guidancethat recommendstatements of separationshould be regardedas sufficient.In Case70, on the other hand, the housing officer advised the applicant (a single female) to present at her former council area office in Prestwick despite the fact that she was apparently fleeing violence. Finally, in Case 95, a pregnant woman (aged twenty) is advised that accommodationin the private sector is still availablefor her occupationsince an invalid noticeto quit hasbeen served and, therefore, she doesn't require to leave. No consideration was given, though, to the reasonablenessof remaining in the property, for example, the effects on her mental health of threatenedeviction action, not to mention whether the eviction action itself was legallyjustifiable. iii) Priority Need

Priority need, as clarified in Chapter 3, has a distinct legal meaning and includes five specific categories. Evaluation of Council B practices in relation to priority needs assessmentis problematic,however, because of the fact that datais limited.397 One concern identifiedthough - and one analogousto that in connectionwith homelessness- is the lack of standardisedprocedures to ensurethat possiblepriority needcases are assessedin the light of legal definitionsand requirements.In Case66, for instance,it is stated by the housingofficer that an applicant(aged twenty one) has no priority becauseof her age.

Therewas, however,no assessmentas to whetherthe applicantmight be coveredby any of the other categories,for example,a youngperson at risk of sexualexploitation. It shouldbe

397 Applicantsoften failing to getbeyond homelessness stage, lack of informationrecorded, lack of inquiries, inadequaciesof the notificationprocess etc. 276 noted that such decisionsare due to inadequaterecording of data on the application form, particularly where applicants are left to complete the form without assistanceresulting in possible relevant data being omitted. Again, in Case75, a single male (aged nineteen)was advised by the housing officer in the refusal notification letter simply that: "You are not vulnerable".No checkswere carriedout, though,to assessif priority mayhave existed due to "looked after" status at school-leavingage, or issuesof vulnerability. Indeed, this Case reflects a coterie of "wrongs" insofar as it contains defects such as no inquiries being made

and the applicationform remainingunsigned and incomplete. In such Casesthe housing

officers are failing to follow the relevant legal and good practice assessmentcriteria. "'

iv) Intentionafty

Establishing intentional homelessness,as we have seen, involves a complex legal test

comprising three distinct matters. As indicated, few of the Council B casesappear to have

been refused on the basis of intentionality. Table 6 below provides a summary of

intentionality casesgleaned from the empirical study.

Table 6: Area Office Intentionality Refusals

Case Applicant Status Reason for No Intentionality 57 Single Parent Offer Declined 60 Single Evicted from Temporary Accommodation 65 Single Behaviour 67 Single Eviction from Bed & Breakfast 69 Single Breaking Hostel Rules 97 Single Eviction from Hostel (Blue Triangle) 98 Couple Gave up Private Let 100 Single Evicted from Hostel (Blue Triangle) 123 Single nt Arrears & Refusal of Temp Acconim 126 Single Evicted from SupportedAccommodation

(Source: Council B Housing Office Files)

398For example, Cases20,86,90,92,96. 277 Three points are noted in respect of Table 6. Firstly, in assessingthe individual cases, lack of recorded data makes it impossibleto ascertain conclusively whether housing staff have applied the legal test in the determinationof intentionality. Indications are, however, that certain staff may not be doing so. In Case98, for instance,the fact that a couple gave up a private tenancy was deemedto constitute intentionality. Yet no checks were carried out as to the reasonablenessof continuing to occupy the property in question, for example, to assesswhether there was any form of landlord harassment.In case69, on the other hand, a single male was treated as intentionally homelessfor having stayed away from the hostel for two nights. In explainingthis, the person stated that he had been on holiday in Millport.

No considerationwas given by the authority, however, as to whether the person had acted in good faith, or was ignorant of a relevant fact.'" Reasonsfor failure to apply legal principles

are consideredin greaterdetail later in this Chapter,for example,lack of training provided

to housing officers. A major factor, however, is the dearth of formal homelessness

procedures that encapsulatethe legal principles and would serve to guide staff through the

"four hurdles".

Secondly,the mainreasons for intentionalityinvolve behavioural problems and eviction

from supported or hostel accommodation.400 Assessmentof the applicants concerned

reveals, perhaps unsurprisingly, a preponderanceof young single persons who rnight be

deemedas potentiallyvulnerable and thereforerequiring much support. Table 7 below

providesa profile of applicantsby householdsize and age.

399 Analysis of the data also reveals procedural inconsistencies- albeit in one office only - in terms of processing homelessnessapplications. For example, information available suggeststhat officers are refusing applications on the basis of intentionality without first going through the necessaryinitial inquiries to assesswhether homelessnessand priority need actually exists. 400As per Rv Rugby Borough Council ex p Hunt (1992) 26 HLRI, QBD, where temporary accommodation is lost as part of an authority's stagedre-housing performance,there may be intentionality where the applicant loses the accommodationbecause of behaviour or non-payment of rent (Robson & Poustie (1996)). 278 Table 7: Household Profiles of Intentionality Refusals

H ousehold Profiles Age Band Single Female Single Male Couple"" Single Parent 16-19 2 4 20-25 1 1 25 1 Not Known

(Source: Council Housing Office Files)

Finally, possible reasonsfor intentionality findings are numerous and no definitive list exists.Indeed, each case must be assessedindividually and what mayconstitute intentionality in one set of circumstancesmay not do so in another. For example,failure to pay rent due because of ignorance of housing benefit entitlement would not constitute intentionality, whereas deliberate failure to pay rent might. Consideration of the Council B cases,

however, throws up one concern regarding the decision-makingprocess. In Cases65 and

123, for example, refusal of temporary accommodation is deemed to constitute

intentionality. Yet, refusing offers of temporary accommodation should not lead to

applicants being deemed intentionally homeless. As Robson & Poustie (1996) note:

ceasing to have a fight to occupy accommodation is distinct from refusing an offer of

accommodation" (p227).

Referral of Applications

Whereapplicants succeed in satisfyingthe housingauthority that they are homeless,in

priority need,and that they are not homelessintentionally, the authorityis entitledto assess

whetherconditions for referralto anotherauthority are satisfied. "' The discretionaryaspect

401The couplecomprised two adultsof 18and 22 respectively;the ageof the singleparent ie femalewas not statedon the applicationform. 402Pending such checks the authorityis requiredto ensurethat accommodationremains available to the applicant,a point discussedin Chapter3. 279 403 of this entitlementis stressed,though, as authorities are not legallyobliged to do So.

Turning now to the Council B decisionsin respectof local connection issues,assessment of the seven casesidentified reveal several points of interest. Firstly, certain applicants are being "referred" to their previous local authority for housing assistance,although this is not being done as a formal transfer of rehousing liability. Cases68,82 and 112 exemplify this, for instance, as well as exemplifying other areas of bad practice already alluded to - applicationsforms left incomplete,unsigned and undated. It is importantto note that this is occurring even though the application has not been assessedformally via the "four hurdles".

In effect it is "quasi-advicegiving7 rather than making formal referrals.

Secondly, and largely attributable to the formal defects in the current Council B administrative processfor dealingwith homelessnessapplications, failure to assessapplicants using the "four hurdles" affects other legal obligations, for example, in Case 82, the

applicant was told simply to presentat her own authority (single parent with four children) without any formalassessment. If the first three"hurdles" had been successfully negotiated, however,temporary accommodation should have been offered pending inquiries into local

connectionstatus.

Finally, Case 120 is most illuminating. In this instance, the applicants were simply

advised to approach a local housing associationfor re-housing assistance,without

considerationof the "four hurdles" elements."' This decisionwas later revoked by the

officer who notesin the file:

"PhonedMrs Q back Code Guidance has local ... after checking of - connection-

Local authoritiesnormally do takelocal connectioninto account,primarily becauseof housingstock shortages.This is not normallyapplied, though, in areasthat aredifficult to let wherehomeless applicantsare willing to acceptsuch areas. 404 This caseis evenmore interesting because the original decisionwas taken by a temporarilyupgraded clerical officer who had receivedonly a*two hourinduction on homelessnessthe Fridaypreceding her new postas housingoff icer responsiblefor homelessness. 280 Advised her to keep in touch." work ... vi) Notification

The thesis now addressesthe issue of duties and procedures imposed statutorily on authorities on completion of inquiries in respect of notification to applicants. To recap, notification must be in writing and inform the applicantas to whether the applicantis thought to be homeless (or threatened), has a priority need and, if the latter, whether homelessnessis intentional and whether a referral to another authority has been made or is intended. Statutoryrules do not prescribetimescales for notificationof decisions,although the Code of Guidance specifies a period of twenty eight days as being reasonable. In addition,notification and - if appropriate-a reasonfor a decisionshould be retainedby the local authority for collection either by the applicant or the applicant's representative

(Robson & Poustie (1996)).

With regardto adversedecisions the local authority- in additionto notificationas above

- must also provide reasons,the rationalebehind this to enableapplicants to lodge an appropriate challenge. It is emphasisedthat intentionally homelessdecisions cannot be made unlessthe applicantmeets the legaldefinition of actuallybeing homeless. " The statutedoes not give specificguidance on the adequacyof reasons,but the Codeof Guidancedoes state, however,that "Notification lettersshould give full andclear reasons for a decision(whether I positive or negative)" (p63)."

Reasons,therefore, should be intelligible, factually relevant,and clear, as well as sufficient to enablea dissatisfiedapplicant to raise a challenge. Brief reasonsmay be

althoughfailure to provide is 40' Bearing in sufficient, any reason unlawful. these points

405 Hunt, op cit 406Code of Guidance(1997), par 12.5 407 Rv WestminsterCity Councilex P Augustin,(1993) 25 BLR 281, CA. This casedemonstrated that brief reasonsmay be sufficient. 281 rnind, then, let us consider the Council B notification process by reference to a) decisions madeand b) adequacyof thosedecisions.

With respect to the decisionsmade, it would appearthat Council B has failed to meet legal requirementson numerousoccasions. In twenty eight cases,for instance,(40.8%) of the casesunder review, no notificationletter appearedon file and, given that thesecases relateto adversedecisions, adequate reasons for refusalshould also have been provided. In examining this issue further to ascertainwhether letters may have been sent but copies not retainedin file, a seniorofficer confirmedthat in most casesa letter had probablynot been issued,although housing officers might have provided verbal confirmation of the refusal. vii) Advice

Turning now, then, to consider Council B practices vis-i-vis advice, two points are made."' The first point is that advice offered often fails to meet recommendedgood practicecontained within the Codeof Guidanceto which the council'shomelessness policy allegedlyadheres. In Case63, for instance,the applicationis refusedbecause "You haveno local connectionunder the terms of the Act"; and is then advisedto contact another council's homelessnesscentre and given a list of hostels.Yet most of the application form is incomplete and no checksappear to have been done to ascertainpriority need, intentionality, or local factors that might exist within Council B areas. This caseis even more concerning, though, sincethe applicantstates that he is "deaf and dumb" and counsellingin terms of advicehas neglected this matteraltogether. " Nor was the applicantadvised of the internal council appealssystem that allows all dissatisfiedapplicants to have a hearingbefore a members'panel precededby a hearingbefore seniorhousing staff. Another exampleof

40"As we haveseen no adviceappears to havebeen given at all in manycases, for example,those cases whereno decisionletter was issued. The commentshere focus on thoseCases where advice has been given. 409Possibly the person'sstatus had an effectupon the decision.A singlemale (thirty three)of no fixed abode.In addition,the notificationletter did not coverthe otherhurdles. 282 inadequateadvice involves Case 66 in which a single female (twenty one) is advised simply

about council housing options and no mention is made about housing associationor private

rentedoptions.

The second point is that advice is, on occasion, legally inaccurate. In Case 120 as

alreadynoted, for example,the applicantwas told she had no local connectionand to

present at her own authority, the officer concernedlater realising that she did in fact have a

local connection,ie work.

In evaluating current inadequacies,senior officer responsessuggested two principal

reasons. The first reason relates to non-implementation of comprehensivehomelessness

procedures that guide staff through the legislative and good practice provisions. Such

procedures, as noted earlier, have in fact been developed, reasonsfor non-implementation

attributed by one senior officer to a changeof personnel,the new senior managerresponsible

for homelessnesshaving delayedimplementation of the procedures. As this officer stated:

"I understandthat the draft (policy) was amendedat the request of the new manager.

But I do not know why no progress was made thereafter. This person did not

communicatewhether he was unhappywith the contentsto the working group and

almost two years on, I am not aware of a procedurein operation at present."

The second reason concerns grossly inadequatetraining provision, as well as lack of

information.With regard to training, for instance,many staff have receivedlittle or no

training. As onesenior officer confirmed:

"They would only receivethe training that had been developed,and given that

there's no corporateremit for developinghomelessness training, I am unawareof

any resourcedriven training. "

With information hand respectto on the other - and analogousto CouncilA practice-

283 there is no systemin place for advising staff of caselaw decisions,nor proceduresto amend administrative practice in the light of such decisions. c) Rights of Repair

As emphasisedin a precedingsection, policy documentationcontains little information on the right-to-repair scheme. And examination of existing practice reveals similar findings.

There is no formal systemin place to regulate the scheme,for example,advising tenants of their rights when qualifying repairs are reported, nor is a system in place for recording

repairs carried out within/without statutory timescalesand levels of compensationpaid to

tenants. In short, systems to promote the implementation of legal rights have not been

established.

Yet initial consideration of statistics available suggests that apprehension may be

misplacedas Council B repairs data shows that 99.3% of all emergencyand urgent repairs -

within which categories qualifying repairs are included - were carried out within

timescales." Consideration of earlier data, though, suggests that fewer repairs were

completed within timescales,with only 91.6% of emergencyrepairs being completed on time

for 1998/99, and only 75.4% for year 1997/98; while urgent repairs completions stood at

been only 75.5% and 51.48%. Assuming a sizeableproportion of these repairs may have

qualifying repairs, it seemsreasonable to argue that many tenants had an entitlement to

compensation. Again, emergency repairs totalled thirty six thousand one hundred and

seventy one in 1997/98 and yet only 75.4% were completed on time, that is, almost nine

thousand repairs failed to be completed. In compensationterms this could entail sums

approaching L90,000 pa based on the minimum legal entitlement of ;CIO for each qualifying

410Unfortunately the total numberof repairsby categoryis not given,and thus it cannotbe assessedhow manyrcpairsthcO. 7%figurcrcprcscnts. Previousyears' figures for emergencyjobs issuedare thirty six thousandone hundred and seventyone (1997/8) and forty two thousandsix hundredand seventynine (1998/9). 284 repair not completedon time. Indeed,one senior officer interviewedinvolved in repair programmesindicated that a lot of money has gone "unclaimed" primarily "becausetenants weren't told of the existence(ofthe right)".

Despite these figures, however, senior staff confirmed that few claims for compensation have been made, although no exact figures were available as payments made are not monitored. This may be due in part to deficienciesin the information leaflets on the right-to- repair scheme that is appended to the annual rent increase notification letter."' In accordancewith this leaflettenants are correctlyadvised of the salientlegal elementsof the right-to-repair scheme,including their right to compensationwhere repairs are not effected within statutory timescales Yet, it is the advice contained within the leaflet that suggests why compensationmay be less than anticipated. For the leaflet affirms that "claims must be submitted in writing to your local housing officer" for compensationto become payable, advice that is contrary to legal provisions in accordancewith which payment is to be made automatically wherever statutory timescalesare not met, unlessone of the exceptionsapply.

Reasonsfor such an omission of rights information are varied, but a senior officer's informal commentsprovide initial insight. According to this officer, Council B has not publicisedor developedthe schemebecause a) tenantsthemselves appear to have little interestas reflectedby the low numberof claims,and b) from the perspectiveof the council, operationof the schemeas legally requiredis not cost effective,for example,the costs involvedin establishingand runningthe administrativesystems associated with the right-to- repair scheme.The seniorofficer also notedthat evenissuing of chequesto tenantscosts more than the minimumcompensation payment itself. Yet the words of anothersenior officer areperhaps more illuminating:

411information provided informally by CouncilA's accountsmanager in the absenceof official monitoring data. 285 "The council is frightened in case they open a can of worms, in case they cannot

delivertheir servicein line with the right-to-repairscheme. Which is wrong! I take

the opposite view. I think it should be used as a managementtool to ensure that

servicesare getting done properly."

Other Repair Obligations

As per the Council A study, Council B does not monitor Schedule 10 repair obligations separately,nor does it provide tenantswith information concerningthe right to withhold rent wherethe landlordfails to fulfil repairobligations. Further research is required,therefore, to legal evaluatewhether current practice in Council B conforms with requirements. d) Securityof Tenure

The issue of Council B practice concerning recovery of possessionactions is now evaluatedby considerationof rent arrearspractice and anti-social practice. i) Rent Arrears Practice

Three generalpoints are noted prior to carrying out an evaluation'of actual practice in the light of legal requirements,with commentsbeing provided on associatedgood practice issuesas appropriate. The first point is that rental incomeconstitutes the main incometo

CouncilB's housingrevenue account. The secondpoint is that the sampleof casesanalysed representa total of thirty five casesin respectof which an NOP has beenissued. These caseshave been selected from the two areaoffices under review and representcases "live"

1999.412 as at The third point relatesto the natureof work carriedout by housingofficers concernedwith rent arrears.

Unlike council housingofficers involvedin estatemanagement activities, staff dealing

412NOP's werenot beingmonitored quantitatively by CouncilB until late 1999.information provided orally by staff, though,suggests that largenumbers of NOP's areserved and, thus, the sampleselected can only be conjectural,offering someinsight into mattersfor review. Casesin which a decreefor possessionwas grantedhave not beenassessed since, unlike CouncilA, decreesare enforcedby the datespecified in the extractdecree. 286 with arrears are specialistworkers, involved primarily in arrearscollection, albeit that within this role they carry out a broad range of duties, for example, housing benefit reviews, collation of data for statistical monitoring purposes,training of temporary (and junior staff).

In addition, their duties are not directedat specificlevels of arrearsbut include minor amounts as well as serious amountsof over 1500 (cases21,25,31,36,42,53), culminating in a substantial workload that can result in mechanisationof activity such as issuing of

NOP's that may not be in accordancewith principles of reasonableness.Indeed, one officer interviewed in January heavily criticised both excessiveworkload and lack of management planning as follows:

"I last did any true arrearswork in August last year. We did the revisions (Housing

Benefit) and we were instructedto stop doing the arrearswork becausewe'd got the

revisionsto do;" andagain:

meanthat it's all reactiverather than proactive. They haven't actuallysat down

and thought about what we actually need to do. (Senior officers) start doing

somethingand then, oh my God, 'we forgot aboutthis! ' So you stop this and you

do God it drives " go and this andthen, oh my ...... us crazy!

Assessmentof current staff practice appearsto confirm that procedural actions generally

conform with policy principles, thus fulfilling the legal requirements of ensuring that a

ground for recoveryexists and that repossessionactions are reasonable."' Yet, current

practiceindicates a potentialtension developing between satisfying the legalrequirements of

reasonablenessand the businessneeds of the council to maximiseincome and meet

organisationaltargets, a point supportedby one senior officer who affirms the view that:

I think it's becomingmore essentialto minimisedebt than havingto be seento be

413That is, enacting a processof letters, interviews, home visits prior to issuing NOP's. 287 reasonable"

As a consequenceof financial concerns,housing officers are increasinglyunder pressure to issueNOP's as a threat. In the words of the sameofficer:

"I think a lot of Notices are maybe issued to people who have undertaken an

arrangementand are keepingto it, but to keep the council on the safe side, they issue

a Notice in casethey shoulddefault on that arrangementso that they canbe booked

in immediately.77414

And priority affordedto businessobjectives is evidencedfurther in recentorganisational change,as well as staff practice. Organisationalprocedures altered in 1999,for instance,to

"fast track" arrearsactions by reducingthe number of home visits. And, although there is no automaticlevel of debt specifiedat which point an NOP is issued,staff appearto adhereto the practice of issuing NOP's in liaison with supervisors-where arrears reach 1100, while in one office - as advisedby an interviewee- the figure is apparently180 (Cases22,32,39).

It appears,therefore, that staff practice is increasingly regulated by debt targets that may conflict with criteria of reasonableness.Thus, in Case 30, the tenant was issued with a

Notice of Proceedingsdespite the fact that the housingofficer was advisedby the tenant during a homevisit two daysbefore the serviceof Notice that shewas recoveringfrom a strokeand would agreea repaymentplan to clearthe arrears Again, in Case52 involving a singleparent with two daughtersand debt of c 1400,the housingofficer notesthe following:

"Tenant statesshe is on anti-depressants.I advisedher if she could not pay the

shortfall of 1352, court action will be taken.Tenant advised she could maybepay

1200 at the beginningof month,I advisedher casewas now being passedto team

leaderfor court action. To pay asmuch as shecould... ".

414Indeed, a practicethat only ceasedin late 1999as a resultof a tenantcomplaint to the directorof housing that inducedsenior rent controlofficers to memostaff to discontinuethis practice(Council B Internal Memorandum). 288 This caseis of particular interest insofar as the tenant apparentlyfell into arrears due to late application for Family Credit and also owes an income support overpaymentof 12,558

(Council B money matters advice service memo, 10/12/98)). It should also be noted that business driven goals are tending to result in arrears practices becoming increasingly threatening in nature, for example,threats to evict unlessfull paymentis received (Cases24,

41,52 for example). Yet such threats are clearly unrealistic given the relative poverty of tenants such as Case33 that involves single parent with two teenagechildren earning a low wage being requested to pay a lump sum of 1577. Again, in Case 34, the tenant is threatenedwith possibleeviction because of continuedfailure to cleararrears, arrears in this case being only il 15 when Notice of Proceedingswas issued. It is difficult to understand, though, how paymentmight be madewithout the tenant incurring hardship(and further debt through borrowing, say, to stop the eviction). In the words of the housing officer:

"Will proceed with court action (C/A) - although (tenant) on a low income, arrears

have accruedwhen tenant was under 25."

Council B practice indicatesthat variable summonsfor eviction are being sought rather than seeking payment actions. This practice has serious potential implications for rights issuessince, unlike CouncilA, CouncilB implementsdecrees obtained. In the words of a senior officer regarding decrees:

"We don't stop a lot. We honestlydon't stop a lot becausewe try to ensurethat

whenwe get the decreewe progressit. "

It should be mentionedin support of council practice, though, that decreesare purportedlyapplied for only afler legalgrounds have been met, a position supportedby an intervieweesolicitor employedby an organisationsupportive of tenantsrights who believes that: "Council B do take (action basedon) eviction as a last resort". The solicitor also

289 added, however, that much would dependon the particular sheriff in question. To quote:

"Depends on who you get basically. I mean (x) sheriff court has a number of

different sheriffs with different views... I think the polite way of putting it (is)

someare very clued in and somefrankly are not."

below Table 8 showsthe profile of court casesfor the period April 1999 - July 1999 and the dearth of payment actions is evident. It should be stressedthat Council B promotes take-up of benefitsto maximiseincome and prevent debt accruing, court action to repossess in generaltaken as an actionof last resort. Oneofficer has confirmed, though, that the focus by Council B on debt reduction may occasionallybe contrary to satisfying reasonableness criteria. To quote:

"I had hugeconcerns about this casebecause it was a short circuitedone, but I was

instructedit had to go ahead. If it had goneahead, we would haveended up with

massiveamounts of egg on our face and it would have damagedthe council a lot

becausewe hadn't done anything at all that was reasonable. It was very, very lucky

on the day that the solicitor representingthe other party consentedto the decree.

But that was good luck ratherthan good management.We flew very closeto the

wind. I was angry about that... angry becausewhat we and the legal department

were sayingwasn't being taken into account."

In teasingout this latter point a CouncilB legalinterviewee confirmed that:

"I think sometimesthere's a lack of understandingamong housing officers of the

constraintsthat existin connectionwith court actions."

290 Table 8: Court Action OutcomesApril 1999 - July 1999.

Court Action Outcomes Number % of Total Decree for Eviction 87 91.6 Decree for Payment ' 8 8.4 Total 95 100

(Source: Council B Monthly Arrears Report, Court Team)

Reasonsfor the apparentdearth of payment actions were noted by staff during interview as follows: administrative and time consuming problems associatedwith wage-arrestment procedures; ignorance of payment action options, including small claims procedures; the effectiveness(or perceived effectiveness)of using NOP's to secure early payment of debt, particularly in view of staff workload pressures.

With regard to the question of organisationalprocedures, Council B practice indicates that functional specialisationof housing managementactivities may potentially conflict with either the reasonablenesscriteria or good practice guidelines regarding rent arrears control.

For consideration of existing practice shows that housing staff involved in estate management or rent arrears control may serve separate NOP's in respect of the same household;whereas more efficient practice would incorporatethe groundsfor actionwithin the sameNotice. Cases9 and 21, for instance,relate to the samehousehold against whom actions are raised separatelyfor both rent arrears and anti-social behaviour. This implies lack of co-ordinationand may well inhibit the effectivenessof actionsraised given that establishingbreach of two separateconditions of tenancymay enhance the reasonablenessof an action andthus persuadea particularsheriff to grantan evictionorder, althoughit should be emphasised,of course,that lack of co-ordinationby CouncilB may paradoxicallyprotect tenants'rights.

291 ii) Anti-Social Practice

In terms of background statistical information, the first point to note is the extremelylow numberof casesthat can be classedas seriousand in respectof which someform of legal

411A action has been initiated. total of twenty casesfor the period 1998/99has been selectedfor analysis,a figure that representsa clear majority of all current serious cases.""

In respect of types of problemsbeing dealt with as anti-social behaviour, analysisof the twenty casesshows that the main problem is noise (fifteen) with other complaints concerning cleaning (one), gardens (one), neighbour disputes between two households (two) and unlawful use of property (one). Some cases,it should also be noted, involve more than one complaint (eg Case 7- noise and cleaning). In general terms, then, these figures reflect nationaltrends which indicatethat noisecomplaints constitute the primecause of anti-social behaviour.

As highlighted in the preceding section, Council B's estate managementpolicy and proceduresmanual on estatemanagement is extremelycomprehensive and involvesa wide variety of both managementand legal actionsthat can be taken to deal with anti-social behaviour. Considerationof the twenty casesunder review, however, suggests two possible concerns,though such concerns are tempered by the fact that the casesunder consideration were in progressprior to the developmentof the new Council B policy that came into force in late 1999."'

The first concernis that legalremedies applied are limited in scope,for example,the use of non-housinglegal remediessuch as interdict or implementare rarely considered

415 Although court statisticshave not beenmonitored until recentlyCouncil B's legal departmenthas advised that, sincethe inceptionof CouncilB, courtactions to evict tenantsaverage only about3 to 5 casesper annum. 416Given the small numberof cases,these figures include cases where NOP's havebeen threatened as well asactually served. The samplerepresents approximately 80% of currentarea office cases. 417it shouldbe noted,however, that the previouscouncils had their own policiesand, in somecases, these wereon par with the new Policyregarding breadth of possibleremedial actions. 292 (exceptions being Cases 16 and 19); nor are alternative housing legal remedies such as compulsory transfer a common practice."' Indeed, the common approach is to issue an

NOP whenmanagement tactics aimed at curtailingproblem behaviour have failed. In none of the twenty caseswas consideration given to application for an asbo, although this is mainly explainedbecause of the recent introduction of the latter (ie 1/4/99) and the fact that most of the casesoriginated prior to the introduction of asbo's. Indeed, subsequent discussionswith seniorofficers have confirmed that a limited numberof asboapplications havesince been made.

The second concern is that the correspondencegenerally fails to provide advice to tenants, omitting any reference either to advice agenciesor remedies available. Case 14 offers an interesting perspectiveon this latter point, for instance,where the tenant replies:

"We had no ideathat therewas a local governmentombudsman until a few months

ago. We have given our local council plenty of time to act. But to no avail.""'

Summary

Evaluationof CouncilB practicesin respectof the rightsunder review suggests a number of concerns.Council B hasnot establisheda formal systemin respectof the accessto files regulations,for instance,nor is detailedinformation about this right providedto tenantsor housinglist applicants.Again, Council B hasfailed to establisha formal repairssyýstern that incorporatesthe legalrequirements in respectof the right-to-repairscheme. With regardto homelessness,on the other hand, Council B has developeda policy that espouses commitment to all legal provisions and good practice requirements as per the Code of

Guidance.Yet assessmentof existingstaff practicehighlights that legal rights are not being

418 The Housing (Scotland) Act 1987, Schedule3, ground 8. 419 This was the tenant's responseto Q10 on the Ombudsman's Form in relation to why a complaint had not been lodged if the period exceeds12 months. 293 met in a variety of ways, for instance,certain decisions concerning intentionality. Finally,

Council B practice involving security of tenure matters tends to satisfy existing legal and good practice requirements, although consideration of reasonablenessissues may be dirninishingbecause of organisational,fiscal and business priorities.

Other Factors in Rights Implementation

The theoretical systemsmodel developedin this thesis to analyserights implementation issuesis extremelyimportant for three reasons: firstly, it enablesus to identify the broad range of factors pertinent to issues of implementation and - more important - to select factors critical to effective rights implementation. Secondly, it provides for a theoretical explanation of why rights implementationis ineffective, for example,through organisational failure to implement a holistic strategy that encompassesthese key factors. Thirdly, and through identificationof thesefactors, it unveilsorganisational discrepancies, for instance, the gap between espousedpolicy objectives and actual practice, thereby facilitating detailed theoreticalunderstanding of why appearancediffers from reality. In short, this approach enablesus to analysewhether housing policies, despite their commitmentsto rights may be primarilysymbolic in nature,their objectivebeing "to demonstratethat actionis beingtaken, ratherthan that the issueor problemis beingaddressed seriously" (Marsh (1998) p9).

The gap already identified between corporate policy aims and actual council documentationsuggests that policiesmay be symbolicin part. To this issuethe thesiswill return in the concludingChapter after evaluatingother factors deemedcritical to rights implementation. These issuesare similar to those identified in Chapter 3, although information gathered provides additional insight becauseof the exceptionallycandid responsesprovided by both grassrootsand seniorofficers. Issuesare now assessedunder

294 the following headings: workload and methods of work; performance management; communications; and personnelmatters. a) Workloadand Methods of Work

In their major study of housingmanagement post local governmentre-organisation, Scott et al (2001) highlight that:

"The lack of stability in key organisational features such as structure, senior

management,front-line service delivery, staffing levels, location of functions, and

decision-makinglevels is clearlY not conduciveto either the consolidationor

developmentof good practice behaviour" (p 17).

Scott et al (2001) also suggest that research is specifically required to focus on

"alternative ways of managingthe housing service" (p 113). It is the purpose of this section, then, to evaluate how Council B has developed its organisational structure and working methods.

Council B has decentralisedall mainstreamhousing services. It has also adoptedthe generic approach to service provision, although this was introduced only in 1999. As with

Council A, however,there has beenno systematicassessment of workload levels or how workload might impact on service delivery in general or rights implementationin particular.

As one seniorofficer remarks:

"One thing we've neverdone as an authorityis any empiricalanalysis on volumes

and measures...and one of the things I've always argued particularly in estate

managementand allocationsand homelessness if they're genericbased, your staffing

levelshave to reflect the volume of work generatedwithin a particularcommunity

andthat will varý'.

It shouldbe stressedthat CouncilB hasnot yet developedemployee job profiles that

295 incorporate clear performancetargets that are objectively aligned to both departmentaland corporate council objectives."' Indeed, the decisiontaken at senior level to implement staff working practicesbased on a generic as opposedto a specialistapproach was taken without prior evaluation of potential impact on work effectivenessgenerally. Nor was adequate training provided as part of the transitional processtowards genericism.To quote the same officer again:

"I don't think any training has been done to prepare(staff) for generic working and I

think that's the sad thing about it".

Before assessinghow generic working might impact on rights implementation,it is also

worth noting that managerialstaff do not monitor many areas of staff performance despite

the fact that effective monitoring of staff practice is important in scrutinising whether

working standardscomply with legislativecriteria. Collationof datathrough performance

measurementis essentiallyquantitative in natureand fails to provide detailedfeedback on

rights implementation. But anotherfactor that has been identified as being potentially

detrimentalto effectiverights implementationin CouncilB is the dearthof organisational

systemsto providechecks and balances. In the caseof homelessnessdecisions in one of the

offices under scrutiny,for example,it was affirmedby a seniorofficer that the quality of

homelessnessdecisions was not monitoredon a regularbasis, indeed that the validity of

decisionswas not generallyaudited unless a case was referred through the internal

homelessnessappeal system. "' Indeed,those senior staff interviewedtended to assumethat

tasks were being done, for example,the assumptionthat decision letters in respect of

"0 It hasbeen advised that suchprofiles are in the processof development,but this hasbeen the casesince 1997. A point, it shouldbe noted,that hasbeen discussed by an internalworking party considering homelessnessservices in respectof BestValue. Thus,housing managers will be expectedto vet a sample numberof casesto assessthe quality of decisions.It is alsointeresting to notethat evaluationof the cases that reachedthe tertiary councillorsappeal stage reveals that mostapplicants won their appeals. 296 homelessnesswere being retained on file; or the assumptionthat staff would be implementing policies and procedures, particularly after training had been provided, for instance,spending sufficient time with tenantsto explain the latter's rights during the signing of Council B's tenancy agreement. Yet neither assumption had ever been corroborated through any formal assessmentof file documentationor staff performancein respect of the contractual process. Indeed, informal discussionwith housing officers has since identified that the signing and explanation of tenancy agreementdetails, including rights information, has now been delegatedto more junior housing staff who are untrained in rights matters. Of particular concern from a rights perspectiveis the comment of one housing officer to the effect that interviews last only "about a quarter of an houe', as opposed to the period of

"between 45 minutes and one hour" originally recommendedto staff by the internal staff who providedthe tenancyagreement training.

It shouldbe emphasisedin passingthat managerialstaff are themselvesunder extreme pressuresas far as workloadis concerned,their remit coveringa wide variety of dutiesthat havenever been quantified in termsof feasibilityof effectiveimplementation. In addition, existing organisationalstructures where housing officers report not directly to the manager, but via a teamleader, entail that the formerare often 'removed'from day-to-daypractices, a removalexacerbated by a dearthof meaningfiilperformance indicators that takescognisance of both qualitativeand quantitative matters. "'

All staff interviewedindicated that currentworkload levels impact negatively on service delivery,emphasising that qualityof servicewas adverselyaffected by heavyworkload. As one seniorofficer noted:

"The amountof work that I've got is almostimpossible... I seeit becomingimpossible".

422Managers interviewed, indeed, expressed support for possibleinnovations such as considerationbeing given to the appointmentof a court officer to dealwith breachof tenancymatters akin to the rent arrears court officer who dealswith court actionsfor the specialistarrears component of the housingservice. 297 b) PerformanceManagement

Analysis of Council.B, organisationalpractice confirms that performance management measureshave increased,thus reflecting the growth of housing managementperformance measurementsystems generally, systems that the literature review suggests are "placing increasing emphasison meeting objectives rather than the interests of providers" (Mullins

(1998) p252). With referenceto the indicators currently in place, for example, Council B- in addition to the statutory measures- collects a large volume of data, including number of interviewswith clientsand number of gardenand close inspections. "'

In discussingthe establishmentof the new performancemanagement systems with staff, interviewees affirmed that existing workload stress had been exacerbatedby the establishmentwithin Council B of a performancemanagement culture; this is reminiscentof the criticismof performanceindicators raised by Jacobs& Manzi (2000)in Chapter2 to the effectthat performanceindicators can damage staff morale, thereby affecting service delivery including effective implementation of rights. Indeed, staff complained without exception that ability to fulfil work requirementswas adverselyaffected by the collation of statistical datato enabletargets set to be monitoredand that quality of servicehad been downgraded by demandson their time to collate the mainly quantitativeperformance standards data.

There is no monitoring at present, for example, of quality of advice provided to homelessnessapplicants, say, nor is the effectivenessof training provided assessed,for example, by assessingperformance both prior to and after training. Yet dearth of measurementaffects not just qualitativeissues, but quantitativeareas too, for example, active monitoringof the importantarea of NOPs issuedin respectof rent arrearsdid not commenceuntil Autumn 1999.

in one particular quarter, for example, a total of 4,722 gardenswere inspected. 298 The possibility that such target setting may affect rights implementationis implied in the words of onesenior officer who acknowledges:

"It seemsto take up a long time... and people's time can be diverted to doing

paperworkrather than going out anddoing the actualjob. "

As highlighted in Chapter 3, however, excessiveworkload is not synonymous with ineffective rights implementation.In the area of homelessness,for instance,workload factors arguably impact negatively on staff time allocated to the assessmentof homelessness applications and this may contribute to rights not being protected. Yet, workload factors are not directly relevant to the non-implementationof other rights such as accessto files where non-implementationlinks directly to the absenceof any fortnal.council policy and procedural system. This is also true in respectof the right-to-repair scheme. c) Communications

Effective rights implementation, as highlighted in the literature review, is heavily dependenton appropriate communication systemsbeing in place, Indeed, as Handy (1985) acknowledges: "Good communicationsimply a well-designedhealthy organisation!' (p360).

Failure to advisetenants of their rights, for instance,was shownto be one of the critical factors affecting the rights-bearer's capacity to exercise her/his rights; and failure to communicate legal rights information to housing staff, whether through written documentationor formaltraining, has a negativeimpact on implementationof rights.

Yet establishingeffective communication networks is far from easy. For example,public sectorhousing organisations are responsible to a varietyof audiences(the public, councillors and staff) andcommunications require to be tailoredaccordingly to ensurethat:

"the messagewhich the organisationwishes to transmitshould be sent consistently

throughall the communicationchannels to all the audiences"(Flynn (1990) p 147).

299 And analysis of communicationssystems in Council B vis-A-vis the dissemination of relevant information reveals a number of concerns."' In an MBA thesis published in 1999 concerning housing departmental communication systems in Council B, the researcher affinnsthat:

there was little considerationgiven to systemwide impacts and there was

evidenceof poor communication,little joint work acrossfunctional boundaries,

extreme caution and blaming others, unsupportive reward systems, dominating

proceduresand central systeme' (p3)

In evaluating why communication systemshad been poorly developed, the researcher cited one managerialopinion to the effect that:

"... such is the organisationthat power rests with a small conclave who are isolated

from the thoughts and experienceof those delivering services... those eventually

accessingthis elite statushave a vested interest in retaining that powee'(p65).

Council B communicationsystems are now evaluatedunder the.headings of internal and externalcommunications. i) Intemal Communications

Although an organisationalteam briefing systemis in placethrough which staff are notified of specific organisational.developments, this notification process does not necessarilyincorporate changes of a legal nature. The council's legal departmentdoes, however,produce briefing noteson a rangeof legal issues,although these are not housing related,nor is any procedurecurrently in placefor ensuringthat this informationreaches area office housing staff.

The lack of a formal systemfor ensuringcomprehensive dissemination of legal

424The thesisand researcherare unnamedto preserveconfidentiality as requested. 300 information is illustrated well by the fact that legal changesto grounds for possessionthat resulted from the Crime and Disorder Act 1998 were not referred to housing staff until severalmonths after the changeshad occurred, although thesehad allegedlybeen referred to area housing officers by a senior officer. "' As one senior officer has stated:

"Communicationis poor. It is somethingthat needsto be improved. You tend to

pick up (legal changes)if you're lucky through the 'Inside Housing'."

The fact that important legislative changeis not adequatelynotified is symptomatic of a

barrier 426But barrier to from major communication . another effective communication stems the specialisationof individualhousing functions such as arrearsand maintenance,and the tendencyto restrictstaff accessto informationconcerning those specific functions, a process that tendsto modularisestaff awarenessof legalissues instead of enablingcomprehension of their inherent systemicrelationship, for instance,the close links among supposedlydifferent

427 areasof law.

It is worth noting in passingthat other internal council researchhas indicated general

concernsin respectof inadequatecommunication. For example,an internal report to Council

B in 1997 indicated that:

"two thirds of staff do not believethat they arekept up to datewith what is going on

elsewherein the housingdepartment". "'

And further councilresearch into staff attitudesconcerning communications was carried

... Confirmedby this officer at a separateinterview. 426For example,in additionto the Crimeand Disorder Act 1998,staff havereceived no informationon the importantlegislative provisions contained within the DataProtection Act 1998and the Protectionfrom HarassmentAct 1997respectively. 42'A point that will be assessedin greaterdetail when current training provisionis evaluated. 428The overallvalue of the researchprepared by independentconsultants is, however,arguably limited in view of questionsasked and the formatof questions.For example,93% of staff expressthe view that they do theirjob well. This is not surprising,though, and tells us little in the absenceof effectivequantitative and qualitativemonitoring techniques. Again, findingsdepend on staff assessmentbased on answering vaguequestions based on a checklistof the following criteria; 'StronglyAgree', 'Mostly Agree', 'Neutral', 'Mostly Disagree',Strongly Disagree'. Interestingly,this Reporthas not beendisseminated to staff, althoughfccdback is a critical elementof effectivechange theory. 301 out by central personnel which implemented two attitude surveys in 1998 and 1999 respectively. Although digressing,of interest here is the way in which statistical data can be used to illustrate something that may be untrue. For example, the 1998 survey suggests council-wide improvement in terms of communicationsbased on employee responsesand notesthat:

"the majority of our employeesfeel that their commentsand suggestionsare taken

seriouslyand that they arekept well briefedof issuesthat relateto theirjob. "

Yet considerationof the overall staff returnsshows that only 40% of housingstaff returnedtheir questionnaires.In fact the total numberof responsesreceived (one thousand and ninety eight) representsonly about 6% of total Council B employees. ii) External Communications

Communications to tenants comprise a large variety of formats and include leaflets, information sheets,newsletters and weightier documentationsuch as the new Council B tenancy agreementwhich is provided to all new tenants."'

With respect to information concerning the rights examined, however, information providedappears to be extremelylimited, a point now highlightedby referenceto specific examplesprior to providing commentaryon reasons.

It has beennoted already,for instance,that tenantsare not notified of their right to 430 accesspersonal files ; nor are they providedwith detailedinformation regarding the right to repair scheme,for example,rights to compensation.In the words of one seniorofficer when queried regarding repairs information being passed to tenants at point of tenancy agreementsigning:

429It is alsonoted here that no councilTenants' Handbook yet exists,although one is currentlybeing drafted. 430Interestingly, though, social work dcpartincntissue leaflets regarding this right throughouttheir area offices. 302 "They are supposedto do that at the missive signing, but they don't go into repairs.

It would tend to, b,e. things like, you know, you'll have to do your garden, you'll have

1)431 to make sure you clean the close.

Information provided about homelessnessand security of tenure, too, is scant. In respect of homelessness,for example,the Code of Guidanceoutlines a wide variety of locations and methods for the promotion of homelessnessservices. Yet as one housing officer replied in responseto a query regarding homelessnesspolicy being widely disseminated:

"I don't think so at all, no." (housing officer).

And, again,in respectof the provisionof leaflets.

"Do you know if leaflets are given to applicants?" (Researcher).

"Not at all, no." (housing officer).

Documentation provided regarding security of tenure issuesis also inadequate.Tenants are not providedwith written informationon eitherthe rent arrearsor estatemanagement policies, for instance, a position presently at odds with the allocations policy in respect of which applicants for housing receive summarycopies. It is emphasised,though, that in the caseof clientsseeking advice about housing benefit or welfarebenefits, a large volume of written documentationis available,for instance,via the council'soffice networksand money

432 adviceservices.

Reasonsfor lack of informationprovided to applicantsand tenantsare as follows.

Firstly, the developmentof documentationis normallyan organisationalby-product of policy development,indeed it follows logicallyfrom the implementationof specificpolicies. Given the fact that major Council B housing managementpolicies have only recently been

431This officer wasof the opinion that 'technicalrepairs information' would not be discussedat sign-up stagedespite the original managementdirective that the newtenancy agreement should be exploredpoint by point. This will be consideredagain under the discussionson training. 432Personal advice, it shouldbe noted,is alsoavailable through this route. 303 implemented,then, it is partly understandablewhy detailed documentationfor tenants is not yet available. On the other hand, though, this delay cannot solely be attributed to this fýctor since, in the case of allocation policy, leaflets were issued at the same time as policy implementation. Possible reasonsfor the delay in producing documentation could include awaiting the introduction of the proposed new Council B Tenants' Handbook. However, 433 given that the latter is not yet in place, other factors suggestedinclude a) insufficient resourcesapplied to develop relevant documentation,b) inadequateplanning, and c) lack of managerial direction, namely collective failure to apply the principles of systemstheory to organisationaldevelopment. b) Persomiel Matters'

The issue of lack of staff training and resultant poor knowledge has been a major theme in researchstudies. To quote Bines et al (1993):

"The quality of staff, their attitudes, their motivation and the way in which they are

managedwill affect the efficiency and effectivenessof the organisation" (p33).

This will also include effective implementation of legal rights. Such studies have generally failed, however, to analysecontextual matters such as quality of training provided by individual councils and how this might impact on rights implementation. This section of the thesis now examines these issues under the headings of a) training and b) staff knowledge. a) Training

Prior to assessinghow training within Council B may impact on the implementation of tenants' rights, general information is provided in respect of policy commitments and

The policiescame out in November1999, but at endof March 2000the Tenant'sHandbook has still not beenprovided. Indeedthe tenantparticipation officer remittedto undertakethis task is currently involvedin otherpolicy duties. As with CouncilA, the examinationincludes assessment of priority affordedto formal educational training programmesby CouncilB. 304 procedural arrangementsconcerning training delivery.

Polipy Commitments

Council B corporate strategy encapsulatesthe perspectivethat employee development, i. e. staff training, represents one of the most important organisational functions, the council's policy statementstressing that :

"We will give employeesthe training and developmentwhich they need to play a full

part in our work andto developas individuals. "

As part of this strategy, the council has implemented an employee development programme in accordancewith which staff training needs are assessedagainst job "' competenciescontained in relevantjob profiles. This representsthe first stage as noted in

Chapter2 of what can be termedthe 'training cycle', but it shouldbe stressedthat no systemshave as yet beeninaugurated for the formal evaluationof trainingneeds in practice, nor for that matter are evaluation systems in place to assesswhether training provided results in enhancedjob performancein the workplace. Indeed, one senior officer has claimed:

"Our individual needsassessment and employeedevelopment interview processI

think, not putting too fine a point, is a shambles".

Until Autumn 1999 a specialisttraining section with two officers existed, with one senior

officer employedto co-ordinatetraining provision in respectof housingmatters. This post was 'lost, however,as a result of the intemal organisationalre-structuring process to be

replacedby a systemof training delivery involving utilisation of policy working party

representatives or supervisory staff employed at area office level, that is, managers or

435In truth, the programmeis still in its embryonicstages and has not beenimplemented properly in respect of housingmanagement services, for example,many staff, includinghousing officers, do not havejob profiles. The datagleaned from the first assessmentcarried out in 1998provided mainly general informationon training to be givento housingofficers on the pendingCouncil B Policies. No specific needsassessment relating to individual staff needshas yet beendeveloped. 305 officers responsiblefor area office housing teams. This is known as 'cascade' training. As will be highlightedbelow, this had importantramifications from a rights perspectivegiven that the professionalknowledge of the specialisttraining personnelwas no longer available to Council B.

Turning now to the examination of current training practices, this is dealt with by reference to the following issues: extent of training; quality of training; financial commitment to training; and generalfactors. i) Extent of Trajý

The extent of training is assessedin respectof both externalprovision i.e. further educationaland internal provision. 116 With regardto the questionof externalprovision, it is interesting to note that sponsorshipof staff to attend recognisedfurther educationalhousing coursesthat enhancestaff knowledgeof rights issueshas fallen drasticallywithin Council

B."' This decline has been attributedto a desire to rep'lacefurther educationby the introduction of a vocational qualification framework for housing staff, although this has not yet materialised."'

Considerationof currentstaff recordsreveals that CouncilB follows nationaltrends with few staff being professionallyqualified in housing. Table 9 below highlightsthe present situation.

436Staff attendseminars by Given occasionally provided externalorganisations . that thesestaff are mainly seniormanagerial staff, this typeof 'training' hasbeen omitted from the evaluation. 437From over fifty studentsin the inauguralyear of the 'new' Councilto lessthan five in the financial year 2000/2001. 438 With the exceptionof the introductionof four studentsunder the modemapprenticeship scheme. 306 Table9: CouncilStaff with HousingQualifications

Qualification... No of Staff % of Total Staff (608) Postgrad/Diploma 37 6 I-INC 13 2 Modules 44 7

(Source: Council B Training SectionData, 1998)

In assessingthe above data the following points are noted: firstly, the thirty seven staff holding at least Diploma level qualification representsjust 6% of the departmentaltotal of four hundred and thirty six housing managementand one hundred and seventytwo housing benefit staff (i.e. six hundredand eight). Staff holdingthis level of qualificationare mostly located in senior positions and the relatively low level of qualified personnel should, of course, be consideredin this context, that is, the fact that such a qualification is arguably not appropriate for many positions within the organisationalhierarchy.

Secondly,and the abovepoint notwithstanding,the numberof staff holding someother

relevant housing qualification i. e. fifty sevenstill representsa small percentageof total staff

(under 10%)"', althoughit shouldbe notedthat a further nineteenstaff were studyingfor

either a diploma (thirteen) or HNC qualification(six) at the date figures were collated.

Further increasesin levels of qualified staff within Council B are unlikely, however, given

that few staff arenow offeredfurther educational opportunities.

Turning now to the area offices under consideration,Table 10 below illustratesthe

qualificationsheld by staff interviewed,as well as an additionalassessment that includedall

staff at housingofficer or housingassistant levels.

This includesa small numberof staff with postgraduatequalifications in housing'higher' than diploma (or professionalqualification) standard. It shouldalso be notedthat staff with qualificationsother than housingare omitted,for instance,those staff possessingdegrees in accountancy,or qualificationsin informationtechnology. 440The scotvecmodules comprise essentially the housingadministration modules carried out at Scottish collegesof further education.

307 Table 10: Area Office Staff with Housing Qualifications

Postgrad/Diploma L HNC Scotvec Modules Total 412 22

(Source: Council B PersonnelRecords, 2000)

Three main points should be noted in respectof Table 10. The first point is that the four staff possessingeither a postgraduateor diploma level qualification hold either managerialor supervisory posts. If these are excludedfrom the figures, only two staff from the remaining eighteenhousing officers/assistantshold a relevant housing qualification.

The second point is that staff employed often occupy relatively important posts yet possessno recognisedqualification, nor indeed have they received appropriate training. In one case involving a senior officer, for instance, the officer appointed was previously employed as a lifl inspector and had no direct experienceof housing management.Yet, this same officer is now responsibleat area office level - without appropriate induction training having been provided 4or the important (and legally complex) functions of homelessness, allocations and estatemanagement.

The lack of priority afforded to formal education within Council B is not intrinsically problematic from a rights perspective, however, particularly if organisational training providedensures awareness and knowledge of rightsissues. Information gleaned from both internaltraining recordsand staff interviewsindicate major concerns,though, in respectof levels of internal training provided. In terms of homelessnesstraining, for instance, examinationof homelessnessdata showsthat a large numberof staff have receivedlittle training on eithera) homelessnesslaw or b) the rangeof issuesrecommended in the Code of Guidance, for instance,awareness of private sector housing law or c) Council B Policy itself This is shownin Table II below.

308 Table 11: HomelessnessTraining Needs Assessment: 1997/98441

Training Course Attended No of Staff % of Total Staff Law 9 21 Policy 17 40 Code of Guidance 35 58 Private Sector 13 30 Children's Act 18 42 Matrimonial Homes 10 23 Procedures - - SpecialiSt442

(Source: Council B Training Report, 1998)

Interviewee responseshighlighted other concerns regarding the paucity of training received. None of the housingstaff interviewed,for example,had received specific training has on either the access to files or right-to-repair regulations, an omission that serious implications for rights implementation given that policy training did not incorporate such training."' Indeed,one maintenanceofficer confirmedthat he hadreceived only 1.5 training days in thirty three years, thirty of which had been spent with one of the predecessor councils.

Trainingconcerning security of tenureissues, on the otherhand, did take placeas part of the generaltraining staff receivedon the council'spolicies. But in this connection,too, the level of trainingprovided was consideredby most intervieweesto be inadequatein terms of lack of detail being provided as regardstenants' rights. To quote one officer referring to the

estate management policy training that focused on policy and procedural matters, as

opposedto legalprinciples and good practiceguidelines that shouldunderpin organisational.

policiesand procedures:

441These figures are based on the forty threestaff involvedin homelessnessduties at April 1998.The situationis likely worsenif proposedplans to extendhomelessness duties to housingofficers are agreed i. e. c onehundred and seventyeight staff. 442Conducting a homelessinterview'. mental health awareness training ctc. Somestaff participatedin an eventconcerning mental health awareness issues in 1999. 443in oneoffice, though.a teamleader had provided maintenance officers with an overviewof the right-to- repair scheme. 309 "In order to do our job properlyyou've got to be kept up to date with relevant

changesin legislation. But I know from my point of view I've felt as if I've been

chucked in at the deep end, especially coming from an allocations and homeless

background."

indeed, the writer of this researchpersonally attended one of the training sessions concerning the new Council B tenancy agreement. Many pertinent fights issueswere either ignored or discussed only in passing (e.g. fight-to-repair, schedule 10 statutory repair obligations), perhaps unsurprising given that training lasted - to quote one interviewee -

"about half an hour". One senior officer, questioned about this practice in his interview,

frarneworký conimented that it was part of a broader organisational"dumbing down" that organisationallearning now focusedmore on a processrather than a knowledgebased approach;...while a supervisorworking in the field provideda morepractical explanation:

I think trainingis a difficult issuebecause a lot of the time you can't afford to send

staff on training becauseyou don't have enoughcover. That's a major part of if'.

Yet criticism raised by intervieweesconcerned not only the inadequatequantity; equally scathing was feedbackreceived on quality of training provision. ii) Quality of Training

Organisationalrestructuring within Council B, as we have seen, has eschewedtraining delivery by specialist training staff in favour of delivery by grassroots managerial and supervisorystaff. But this particularapproach has been criticised by staff as it can involve using personnelto carry out training who may be ill equippedfor the task, whether through lack of knowledge,aptitude, time restrictionsthat affectpreparation of learningmaterials, or

444Timescales allocated to the policy training weresimilarly inadequate.The TenancyAgreement training, for example,took placein lessthan two hours,albeit the documentis fairly extensivein termsof content. 310 a combinationof thesefactors. "'

Adopting this method of training has been criticised by one senior officer personally, for instance,on the grounds that:

"It provides training but not effective training becausethe internal staff have got

other commitments and they've got to try and deal with them and deal with the

training at the sametime. "

While anothersenior officer is evenmore blunt in his criticism when, in commenting aboutsupervisors as trainers, this officer states:

"I meanteam leadersare not trainers. Training is a specialistskill. "

It is important to note that quality of training delivery has also been adverselyaffected by quantitative issues, for instance, the fact that a swathe of policy and procedural documentationwas introducedsimultaneously thereby engendering a learningprocess based on 'cramming'. To quote one officer:

"It was in-house. They tried to cram so much into the one day that is was flying over

the staffs head. No-onebenefited from it at all."

And, in termsof improvementsto trainingprovision, another officer remarked:

"Personally I would go through one module at a time and concentrate on this and

have an expert in that field who can answer your questions so that when you go

away from your training sessionyou feel that you've had your questionsanswered

and you're confidentbefore you movein the next one without leavingall the open

areas(about rights) that still haveto be answered."

Finally, one seniorofficer with direct referenceto the inadequacyof currentlegal rights

445Council B sentmost supervisory staff on an internal 'Training the Trainer Course'in 1996/97.Yet such coursesdo not, per se,convert personnel into qualitytrainers for which a broadrange of attributesis required,for instance,relevant legal knowledge and practical experience, ability to communicate effectively,possession of interpersonalskills suchas managingboth individualsand groups,and psychologicalskills in 'readingbody language' etc to providecffective training. 311 training has affirmed:

"I don't think they,(trainers) go into depthabout the legalissues that they shouldgo

into".

The final criticism raised by staff from a qualitative perspectiveconcerned consistency of training and how an approachbased on "cascadine'of training meant there was little consistency in the training provided to staff. For, although supervisors utilised standard documentation to advise staff of the new policies, information provided about rights (and other aspects of policy) varied depending on a variety of factors such as (the trainer's) interpretation of materials,actual time devoted to training and knowledge of relevant rights provisions that might have counteracted deficiencies identified in the council's policy documentation. iii) Financial Commitment

CouncilB financialcommitment to staff trainingis reflectedin the budgetaryallocation containedwithin the council's housing revenueaccount. For the financial years 1998/99 this figure stood at just under 190,000 of which sum less than L15,000 had been spent by

November 1999,the lack of expenditureattributable largely to the focus on in-houseas opposedto externaltraining provision.It was notified by one senior officer at interview, however,that commitmenthad since increased as a resultof a corporatecouncil directive to the effect that fundsallocated to trainingwould constitute1% of the departmentalpayroll; this figure is estimatedas being c 1900,000(or c 1200 per staff memberpa). Yet, albeit I , financialallocation represents, apparent commitment to training, the commentof the same senior officer indicatedthat the putative financial commitmentis not synonymouswith commitmentto spendingsums in actual training, particularlyas in-housetraining is the

preferredmode of provision To quote:

312 "It could be a figure to give the impressionthat there is a commitment to training,

but it is oneof thosefigures that's plundered.""' iv) GeneralFactors

Evaluation of the current training methodsemployed by Council B indicatesthree general concerns that are potentially antithetical to rights implementation. These findings are consistentboth with the earlier researchhighlighted in Chapter 2, as well as systems organisational theory: the findings that training for housing staff is limited in the Scottish context and deliveredin an ad hoc fashionwithout providingtraining in accordancewith training cycle theoretical requirements. The first concern relates to the fact that training tends to be restrictedto the specificfunctions carried out by individual officers so that learning is "modularised", thereby preventing a broader understanding of relevant issues.

For example, maintenanceofficers receive no training on the tenancy agreementdespite the importance of the latter in highlighting repair obligations of Council B, information that is

critical in terms of the duties carried out by maintenanceofficers. Again, housing officers

dealingwith arrearsreceive little trainingon the CouncilB policies"unconnected" with their job, a defectthat canadversely affect rights implementation. For instance,arrears staff tend

to consider issues of reasonablenesswith specific referenceto actual arrears without

consideringall the possibleelements that can affectreasonableness, for instance,family and

socialconsiderations, tenancy compliance with other contractualobligations other then rent

payment etc.

The secondconcern alluded to by staff relatesto the need for regular and ongoing

training, a point often ignoredon the assumptionthat peoplewho havebeen on training or

educationalcourses are now "trained"; and a point emphasisedeven in earlier housing

116 A referenceto the fact that training budgetsare frequentlysubject to cuts in the light of other organisationaland fiscal needs. 313 research studies (Stanforth et al (1986)). Yet, like buildings subject to obsolescence,the value of training received diminishesthrough time, particularly where knowledge learned is not routinely applied. In the words of one senior officer regarding repairs legal knowledge:

"Yes I did bit University long time I don't it to tell a at ... a ago. rememberany of

you the truth."

The final concern involves the focus by Council B on the notion that staff should learn

"on the job", in preferenceto receiving formal training delivered by specialists. Yet learning on the job is potentially problematic, its effectivenessoften marred by factors such as supervisory staff lacking time (or knowledge) to develop practicesbased on legal principles.

Thus, staff learning "on the job" often assimilatesexisting bad or unlawful practices, a situationexacerbated in the caseof CouncilB by the dearthof systematicinduction for new employees. ii) Staff Knowledge

Intervieweeswere questionedregarding their knowledge of council policies and also their legal knowledge of the four rights under review. a) Knowledgeof Policies

With regard to knowledge of council policies and procedures, interviewees were generally aware of the existence of policies and procedures applicable in their particular

sphereof work, althoughknowledge levels varied depending on a) training receivedand b) their involvement with particular policies. For example, there was a clear gap in staff knowledgeregarding what policiesand procedureswere currentlybeing developedoutwith

job their particular remit. In the caseof one maintenanceofficer, for example,- and despite

showingawareness of the council repairscategories - the officer remainedunaware that a

new repairspolicy documentwas being developed by CouncilB. In fact, he perceivedthese

314 categories as constituting the policy as opposedto being merely elementswithin it. Again, and with referenceto the new allocationspolicy one arrearsofficer believedthat if tenants are "in arrears",(they) don't get put on TransferList", nor do they receiveoffers, whereas tenants in arrears can actually qualify for re-housing provided suitable arrangementsare in

place."' This also representsa clearindication of the fact that staff fail to receivedetailed

training on actual policy provisions, including the important issue of both how and when to

apply discretion.

b) Knowledgeof Rights

Legal knowledgewas "tested" in respectof the four rights issuesof accessto files,

homelessness,repairs, and matters concerningsecurity of tenure.

i) Access to Files

The specialiststaff interviewedi. e. arrearsand maintenanceofficers were not awareof

any of the main legal provisions, a finding that is perhapsunsurprising given their particular

remit. Yet knowledge held by housing managementstaff was extremely limited too,

although supervisory and managerialstaff were aware of some of the provisions, such as

there being timescale for 44' For a requirement processing applications. example, as one

housingofficer stated: "I'm not awareof any 'law'." Intervieweesalso acknowledgedthat

tenantsrarely requestto seetheir files, but felt that this point was irrelevantand that staff 449 ignorancewas potentially problematic. In the words of one officer:

"I think that it is somethingthat doesn'thappen very often,but when it doeshappen

it couldhave major implications. "

44' As indicatedin Chapter2, the Housing(Scotland) Act 2001,slO (4) (a) will haveimportant implicationsby amendingurgent allocation law so that lessthan onemonth's arrears must be disregarded in the allocationprocess. 448Interestingly. though. none of the staff had heardof the newData Protection Act 1998. 449 The main reasoncited for this relatedto tenants'lack of awarenessof their right to accessriles, aswell as problemstenants might experiencein working throughthe bureaucraticprocess, e. g. delays,efforts required. 315 Indeed so, for by providing someonewith information to which accessshould not be given might be detrimental to a person's physical or mental wellbeing, as well as affecting their ability to protect their rights to reiterate a point made earlier. ii) Homelessness

Only one of the officers interviewed dealt with homelessnessspecifically as part of her duties, although managerialstaff had input at appealsstage. The researchsuggests, though, that other staff may possessonly limited legal knowledge of homelessnessprinciples as may be inferred from the range of unlawful practices occurring in the homelessnessfunction.

little And with regard to the housing officer who was interviewed, this officer showed

judicial awarenessof the "four hurdles" and had no knowledge of the specific remedy of review.450 Of someconcern, particularly in view of the abovepoints, was her commentthat sherarely referred to the Codeof Guidanceas shefelt this to be unnecessary. iii) Repairs

From the three specialistmaintenance officers interviewed,two were almost wholly

ignorant of the law relating to the right-to-repair scheme."' For example, in responseto a

query regarding whether certain repairs had to be effected within specific statutory

timescales,with compensationpayable where such timescales were not adheredto, camethe

response:"No. I didn't know that". And similarfeedback was receivedin respectof the

statutory obligation on landlords to ensure that properties let were "tenantable and

habitable",as well as lack of knowledgeabout Schedule 10 repair obligationsgenerally. In

discussingthis point with onemaintenance officer, it was affirmedthat:

"We have never seenthe tenancyagreemenf'.

'50This officer alsocommented that notificationletters were always retained on file, a point clearlyat odds with empiricalfindings. '51The exceptionbeing a seniorofficer who had recentlycompleted specialist research on repairslaw at GlasgowUniversity. 316 And the principal factor suggestedby one senior officer questionedabout lack of repairs knowledge possessedby specialistmaintenance officers sumsup matters concisely: I, ". "There's not beena lot of training in all honestyfor maintenanceinspectors at all." iv) Security of Tenure

Knowledge levels of the issuesvaried dependenton two key factors, namely a) officer seniority and b) the officer's particularjob remit. In generalterms housing officers displayed

some knowledge of the legal provisions relating to repossessionof secure tenancies i. e.

establishing relevant ground(s) for action and the requirement to show reasonablenessfor raising the action. Knowledge of other remediessuch as interdict and specific implement

was lirnited, though, as was knowledgeof the provisionsintroduced by the Crime and

Disorder Act 1998. For example,staff had not been appraisedof the legal changesto the

effect that there was now a statutory definition of anti-social behaviour, extremely important

in that actionsraised should now conformwith that definitionand not be raisedsolely at the

whim of staff, i.e. basedsimply on their perceptionof what constitutesanti-social behaviour.

Staff were aware, however, of the old ground used to evict tenants guilty of anti-social

behaviour."' It is emphasised,of course,that the new groundsare broaderthan the old

grounds so this per se is not a problemor denial of rights. It is indicative,though, of

inadequatecommunication systems being in place to ensurethat staff are updatedon all

relevant legal changes, an omission that could place tenants at a concrete disadvantage.

Indeed,assessment of tenancy'filesin respectof changesto the law regardinggrounds for

taking actionin respectof anti-socialbehaviour, the newgrounds effective from I December

1998,showed that NOP's were still beingserved using the 'old grounds'until the Springof

1999and, in one instance(Case 10), CouncilB lawyersdid not advisehousing staff until 17

452The Housing (Scotland ) Act 1987, Schedule3, ground 7. 317 June 1999, that:

11 that it might be appropriateto issue a fresh Notice of Proceedingsbased on the

new grounds containedin the Crime and Disorder Act 1998, s 21 (2) and (3)."

Case ShLdyFindit 11

As per the Council A casestudy ten areahousing office staff were requested to complete the case studies, their responses correlating generally with feedback gleaned from the interviews proper. Again, responseswere assessedto gauge staff understandingof the legal issues and not to be regarded as providing legally "correct answers". The main points of interestare now briefly summarised. i) Accessto Files

Intervieweeresponses revealed an almostcomplete lack of knowledgeabout this right, particularly at housing officer level. In responseto the case study concerningwhat personal information a tenant (or housing list applicant) can access,for instance,one officer stated:

"I don't think he shouldsee it (ie file), but I don't; know what his appealrights are."

Again one of the seniorofficers believed that a person"may only seeinformation that would not incriminateother people",though this officer lackedknowledge of appealrights conferredby the scheme. Indeed,this officer believed (wrongly) that Council B had establisheda formal policy that governedaccess rights to personalfiles. iii) Homelessness

Only one of the intervieweesdealt with homelessnesson a routinebasis, while one of the seniorstaff participatedoccasionally in the council'sinternal homelessness appeals process.

In addressingthe casestudy, the housingofficer appearsnot to haveevaluated the issuesin

accordancewith legalrequirements in respectof intentionality.Although the housingofficer

453This involvedarea office staff interviewcesonly. 318 states that she sees "the big problem as being intentionality", for example, she fails to considerthis in terms of the legal test. Indeed,the officer's focus is on the voluntary terminationof the securetenancy in Sussexand the officer intimatesthat shewould:

44 speakto the previouscouncil to seeif the tenancyheld there was still available

that if they could get the tenancy back, they could then go through a HOMES

nomination (to Council B's area)".

The senior officer alluded in his responseto the need to investigatewhether a "bone fide offer of employment"had been made before the applicantsterminated the securetenancy in

Sussex. Intentionality was thus being consideredin respect of the previous tenancyprior to considerationof intentionalityissues in respectof the tied accommodation.Indeed, in this instance,there was no considerationof whetherthe tied accommodationwas settled. And, in the event of the tied accommodation'being settled accommodation,intentionality considerationsconcerning the previous tenancyare not relevant. iii) Repairs

Considerationof intervieweeresponses offered a stark contrastbetween knowledge held by senior (and professionallyqualified) personnel and specialist (and unqualified) maintenanceofficers. One senior officer, recently qualified from Glasgow University's

Housing Studies Programme, outlined concisely both Schedule 10 and right-to-repair

obligations,as well as the commonlaw right of withholdingrent. In addition,he was aware of legalremedies adding that:

"the tenantmay also be eligiblefor compensationfor inconvenienceas the council

hasfailed to fulfil the statutoryobligations contained within the contractof lease."

Feedbackfrom two maintenanceofficers, on the other hand,provided a rather different

picture. Neither of theseofficers was aware of the statutory provisions,or of remedies

319 available to tenants. For example, in explaining how Council B would meet its repair obligations, one officer simply stated:

"Tenants would have had their complaint/letteracknowledged by the Assistant

Managerand Direct Workswould be calledand asked to hurry on." iv) Security of Tenure

Five of the intervieweesdealt with anti-socialbehaviour and two with rent arrears. The following remedieswere suggestedby staff as a way of resolving the anti-social behaviour: implement (3); interdict (3); ASBO (1); Ground 16 (1); notice of proceedings (5).

Assessmentof the five staff membersreveals that the three senior staff had greater awarenessof legal remediesthan both housing officers who cited only implement and notice of proceedings. It is also interestingto note that all three officers are professionallyqualified in housing. Only one officer examinedthe possibilityof a homelessnessapplication being lodgedto resolvethe relationshipproblem.

Staff feedbackconcerning the arrearscase study was fairly tninimal,neither officer explicitly commentingon the needto establishthe ground and reasonablenessof eviction action. Examplesprovided by staff of the types of issuesthe court might consider suggested,though, that both officerswere at leastpartially aware of reasonablenessissues.

For example,one officer addedthat the court mightconsider the following factors:

"Whetherboth joint tenantsknew that arrearsexisted... whether tenants were aware

that benefitsmight be available...and vulnerability of the children."

Summary

Factorsidentified as beingpertinent to rights implementationin Council B havebeen

shownto be broadly analogousto those highlightedin the Council A study. Inadequate

320 direction at senior level to develop and implement organisational practice systemically is critical in explaining non-implementationof legal rights. As with Council A, inadequate direction stems largely from collective failure by senior management to synthesise organisational practice to ensure that key elements actually translate corporate policy commitmentsinto practice. Thus, policy documentationwill remainlargely symbolicin nature unlesscommitment to rights are enshrinedor 'mainstreamed'into administrative practice. And critical to this process as highlighted by Council B staff, is the need to implementclear and comprehensiveorganisational communication and training strategies that deliverrights information.

Tenants' Capacity to Enforce their Rights'"

In Chapter 2a variety of factors that can adverselyaffect tenants' capacity to exercise their rights were examined. Two factors shown to be of major significanceincluded a) the needto ensureaccessibility by tenantsto comprehensiveand detailedrights informationand b) the provisionof training for tenants. Although this thesisis primarily concernedwith organisationaladministrative processes that determinelegal housingrights implementation within local authorities,it is importantto highlightfeedback from a smallnumber of tenants who were interviewedto assesstheir opinionsof practicewithin CouncilA andCouncil B.

Prior to assessingthe tenantresponses, the following points are noted. The first point is that the datapresented is necessarilylimited giventhe smallsample of interviewees(a total

of four tenants,two from eithercouncil). Giventhat the tenantsinterviewed are activistsin

local tenant/residentgroups, however, their views are worthy of note and potentially

indicative of issuesfor more detailed scrutiny. The second point is that the tenants

The specialistTopic Guideused for the four tenantinterviews is containedin Appendix2. 321 interviewed have been council tenants for a lengthy period and have had a long-teerm associationwith their respectivecouncils. Issuesare now assessedunder the following headings: accessingadvice; tenants'perceptions of council staff, council documentation; policy consultation and tenant training. i) AccessingAdvice

As highlighted in Chapter 2, an important factor in empoweringtenants to exercisetheir rights is the opportunity to accesshousing legal advice. As confirmed by both tenants and staff, though, advice options are extremely limited in both Council A and Council B. No specialisthousing law centresexists in either area,or example,and the main advice agencyis the Citizens Advice Bureau. Both councils are also developing a network of 'one stop shops'that dealwith generalhousing inquiries, but don't at this stageprovide specialist legal rights advice. Given that the councils representthe principal source of advice to tenants, it is worth noting the latter's perceptions of housing staff in respect of the provision of informationabout rights. ii) Tenants' Perceptionsof Council Staff

Tenants' perceptionsof council staff ability to advise about legal rights varied considerablywith individualcomments made as follows:

11 1 don't know if they'reinformed about tenants' rights" (CouncilA)

* "Very poorly... a lot of peoplego in andfeel they're beingfobbed off'. (Council

A)

* "Well I can only talk from my own experienceand I've found them okay"

(Council B)

"But to be honest if haul here 9 quite with you ... you were to the staff and ask

what they know of tenants'rights... They wouldn't know any more than what I

322 knoV' (Council B)

In explaining the current situation, one Council B tenant noted that staff were kept in ignorance to protect the council's interests; while one Council A tenant stated explicitly that staff cannot keep abreastof legal developmentsbecause of work pressures. Given the limited knowledgetenant interviewees possessed about rights (seebelow), such comments should be treatedwith caution. Their comments,however, do appearto reflect general concerns noted throughout this thesis concerning lack of staff knowledge concerning legal housing rights. iii) Council Documentation

Housing managementdocumentation has been the subject of detailed scrutiny in this thesis and can often be criticised from a rights perspective. The examinationof interviewee feedbackin respectof both Council A and Council B documentationsuggests similar concerns.None of the tenantshad received detailed guidance about rights containedin their tenancy agreement,for example, a point that consolidatesearlier discussion regarding the limited time housing staff spend in explaining the tenancy agreementto tenants. Again, neithercouncil providesa tenants'handbook that coverstenants' rights in detail, although both councilshave produced various leaflets. Leafletsproduced, however, were criticised by tenantsfrom both councils. OneCouncil B tenantcriticised information provided on the groundsthat:

"I meanthe informationthat you get is in leafletform which only, if you like, glosses

over (rights). It doesn'tgo into anyfine detail".

While another Council A tenant was more direct when questionedabout lack of informationabout the right-to-repairscheme:

"It would cost them a fortune with repairsnot being done if tenantscould claim

323 compensation."

iv) Policy Consultation

Support for public consultation is a central theme of corporate council policy

documentation in respect of both councils. And, given the major housing management

policy developmentoccurring as a result of Local Governmentre-organisation, consultation

with tenants should, therefore, be paramount. Yet analysisof tenant responsesreveals that

commitment to consultation appears to be largely rhetorical in practice. None of the

interviewees had received copies of the councils' new housing management policies,

although one Council B tenant had receiveda summaryof the draft allocationspolicy

through his attendanceat a council meeting. Interestingly, though, this tenant was unaware

of the fact that the policy hadbeen ratified some six monthsbefore. To quotethis tenant:

"As far asI'm still led to believe,the full documentisn't finalisedyet. Is it?"

Further, and to corroborate a point madeby Claphamand Satsangi(1992) earlier in the

.. thesis, none of the tenants interviewedhad played any role in the development'of

performance indicators used to measurepolicy effectiveness,including information

concerning meeting legal obligations. To cite the words of disgruntlementexpressed by one

of the CouncilA tenantinterviewees:

"They tell us nothing!"

v) Tenant Training

Tenanttraining was identified in Chapter2 as an essentialelement of empoweringtenants

to exercisetheir fights. Yet discussionswith the intervieweesreveals that neithercouncil had

been supportiveof detailedtenant training programmes.None of the intervieweeshad

receivedany legal housingfights training,although one specificallymentioned attendance at

the TPAS Conference. Explanationsproferred by the tenantsvaried, for instance,that

324 tenantknowledge could threatencouncil hegemony, that informationis withheldbecause -

in the words of onetenant - the council"wants to control things". But dissatisfactionwith

current council practice was unifonn. In the words of one tenant regarding training and

information provision:

"Really at the end of the day if you analyseit you would probably find that a lot of

tenantsknow evenless than I do".

While another tenant, rather more vociferously on realising how little the council had

advisedhim of rightsissues;

"I think (tenants) should have a deeperinsight into what's going on. That may raise

their awarenessand make them get off their backsidesand wee bit. "

Lack of informationand training providedwas clearly reflectedin tenant responses

concerningknowledge of securetenants' rights. None of the tenantsinterviewed possessed

detailed knowledgeof the four rights under consideration. This was attributed to the

paucityof rightsinformation disseminated to the publicby both councils. For instance,with

referenceto the tenant's right to accesspersonal files, one tenant opined:

"They can't actually at this moment in time. You can't accessyour files as far as I'm

led to believe."

Again, and with referenceto the right to securityof tenure,the sametenant affirmed:

"Their rights are very little actually'.

The final concerngleaned from the surveywas the lack of informationtenants held of

either legal or non-judicialremedies. As highlightedin Chapter2, knowledgeof remedies

can be important as a meansof ensuring effective rights implementation. Yet none of the

tenantsinterviewed had detailed knowledge of sheriffcourt remedies,while awarenessof the

Ombudsmanand the internalcouncil complaintssystems was minimal. One tenantseemed

325 unconcernedabout this, however, citing councillor support as a satisfactory alternative:

"Well, I meanthe honesttruth... tenantsin this area don't tend to exercisetheir

rights becauseif they havea problem,the first recourseis to cometo the office. If

they don't get satisfaction,they just automaticallygo to their councillor."

None of the other intervieweesshared this sentiment,however, and expressedtheir

concernsabout lack of appropriateinformation regardingpossible remedies.

Summary

Given the limited numberof tenantinterviews, nothing definitive can be stated. Tenant

feedback does suggest,however, that current council practicesin terms of rights information

and training provision may deviate from policy commitments concerning promotion of

citizenship principles, including promotion of rights. This summary is useful, then, in

identifying issuesfor future detailed empirical analysis.

326 Chapter 5: Conclusions

"He who considersthings in their first growth and again, whether a state or anything else,will obtain the clearestview of them."

(Aristotle in Mckeon (1973) p596)

"As in privatelife onedifferentiates between what a manthinks andsays of himselfand what he reallyis anddoes, so in historical strugglesone must still moredistinguish the languageand the imaginaryaspirations of partiesfrom their real organismand their real interests,their conceptionof themselvesfrom their reality."

(Marx (1942) pp344/5)

327 Two principal themesnow havebeen analysedin this thesis: firstly, a detailed analysisof the range of factors that affect legal housing rights implementation derived from a detailed literature review. Secondly,a casestudy analysisof specific factors deemedto be critical in understanding the implementation of tenants' rights within two Scottish councils. This analysis has involved innovative research in respect of socio-legal theory, of particular relevance being the application of organisational systems theory to understand the implementation of legal rights within the local authority housing sector. The thesis, therefore,contains important theoretical implications detailed below. Chapter5 now draws together a set of conclusionsin respectof thesethemes.

Despite the proliferation of legal rights in recent years, rights that new housing legislation will enhance"',statutory provisions by themselvesare of little benefitto tenantsand others unless effective methodsfor the implementationof such rights exist. It was critical, therefore, that the thesis identify those key factors likely to affect the rights implementation process,factors that analysisshowed to embracea plethoraof themesincluding political, legal, individualand organisationalmatters. Critically, it was shownthat suchfactors are overlappingand interlinked rather than discrete and separate.

Political and ideologicalfactors were shown to be pertinentto the implementation process,although political influencewas markedby its variability. Central Government support for the right-to-buy provisionswas extremelyprominent, for instance,support that - as in the caseof Norwich Council - involved the use of legal sanctionsto quashlocal authority oppositionto Governmentstrategic objectives. With hindsight,this revealsthe strengthof Governmentcommitment to its overallstrategy of privatisationthat was to be a centralfeature of muchpolicy andlegislative change from 1980onwards.

455The Housing (Scotland) Act 200 1. 328 Governmententhusiasm for the right-to-buyproposals was mademore prominent still by the dearth of support for the raft of other tenants' rights introduced in 1980. Publicity for thesenew rightswas minimal,to saythe least,and rights promotiondepended crucially on local authoritiesand/or other agencies representative of tenants'interests. Lack of resources availableto organisationsexplained in part the subsequentlow levels of publicity afforded to rights issues. But it would be naive to explain such inactivity on resourcesalone. For rights that are deemedto be potentially antithetical to local authorities' interests such as security of tenure received little support in general, while support for other rights that were less controversialwas oflen lukewarm.

Legal theory concerning rights issues has focussed historically on the practice of the judiciary in the interpretation, determinationand application of legal doctrine into practice.

And assessmentof judicial practicehas indicatedtwo salientpoints vis-A-visrights issues.

Firstly, caselaw judgementsby the judiciary havevaried greatly, judicial decisionsshaped by the determinationsof individualsheriffs utilising discretion, whether in the law makingsense of the term or in the exercise of legally conferred discretion. Secondly, there is little evidenceto substantiatewhether or not sheriffshave utilised their discretionarypowers unlawfully, for example,failing to take reasonablenesscriteria into accountwhen deciding evictionactions.

Judicialpractice is, then,germane to the questionof rights implementation.But detailed examinationof factorsrelevant to rights implementationhas suggested that the'Judicialrole is, comparatively speaking, less critical to this process than other matters. For, although court decisions may impact on rights implementationby causing organisational.practice to change,the enforcementof housing legislative provisions rests largely on the actions taken by others,namely a) the "rights-bearere'themselves, and b) those organisationspossessing

329 the legallyconferred powers and duties to implementhousing law.

Law providesthe meanswhereby legal rights can be enforced,but it cannotby itself compelindividuals to exercisetheir legal rights. And detailedexamination has revealeda numberof key factorsthat might inhibit "rights-bearers"from exercisingtheir rights. For example, the increasing penury facing many council tenants, coupled with the negative impact this can exert upon people's lives, was considered to be an important factor in explaining why take-up of fights is often minimal. Certain fights such as subletting or assignation rights, on the other hand, may have little meaning for tenants in the practical sensethat the latter are generally unwilling to exercisesuch rights outwith narrowly defined circumstances,for instance, in those situations where tenants are pursuing employment opportunities at locations distant from their principal residence.

Otherfactors, too, havebeen shown to be extremelyinfluential in affectingthe capacity of tenants to exercise their rights. Dearth of publicity about rights is most pertinent, for instance,as is lack of adviceabout remedies available to enforceone's rights; further, the enforcementof rightsthrough the useof eitherlegal or non-judicialremedies has itself been shownto be problematicsince remedies may be inapplicablein specificcircumstances or costly to use,whether financially or otherwise. Again,lack of legaltraining for tenantshas beenshown to be a key issue,their ability to exercisefights effectivelyheavily dependent on possessingthe relevant legal knowledge.

Yet primary responsibilityfor effectiverights implementationcannot lie with tenants.

For, as the agenciescharged by Central Governmentto administerhousing laws, that responsibilitymust logically rest with local authorities. And detailedassessment of local authority administrativepractices proved to be extremelyfi-uitful in the quest to identify thosefactors most critical to effectiverights implementation. Indeed, the practicesidentified

330 as being pertinent to the analysis were extremely varied in scope and highly complex in nature. For easeof clarification thesewere assessedunder a number of broad headings.

External influenceswere first assessedto elucidateparticular factors that mould local authority practice. Legislative and fiscal controls were shown to be major influences. Legal developmentsthat have precipitatedthe residualisationof the council housingsector, for instance,have undoubtedlycreated barriers to effectiverights implementationwithin the administrative process, as exemplified by the heavy uptake of tenants of the right-to-buy option that, particularlyin the currentclimate of housingshortage, can adversely affect local authority attempts to meet re-housing obligations under homelessnessprovisions.

Ideological pressures,too, have had a significant impact on local authority practices, the

developmentof the New Public Management(NPM) culture and the focus by organisations upon market-orientated Best Value strategies clear examples of these pressures. And

consideration of these organisationalchanges suggested that, contrary to being proactive in

rights development, organisational cultures embeddedupon and. permeated with private

sector business philosophy were potentially antithetical to the promotion of rights into

practice. Indeed,prioritisation of fiscal measuresand businessobjectives within the NPM

culture appeared to make the commitment to rights espoused in organisational.

documentationeven more rhetorical.

Organisationaltypologies were assessedto gaugewhether these were supportiveof a

rights culture. And scrutiny of the expectedrole of local authoritiesas motivated by

citizenshipideals highlighted that, as conceptualisedwithin CentralGovernment ideological

strategy, local authority policies and practices should encapsulatea clear commitment to

rights promotion,a matterconsidered in greaterdetail within the CaseStudies.

Organisationalpractice was then evaluatedto ascertainspecific factors that could

331 adversely affect rights implementation. The development of a performance management culture, coupled with staff perceptionsof increasingworkload, was assessedin depth but no simple correlationbetween these factors and rights implementationwas identified. The focus of contemporaryperformance indicators on quantitative elements,however, could be regarded as a potential barrier to the promotion of rights. Of more relevance, though, appearedto be the connectionbetween ineffective rights implementationand the existence

(or non-existence)of clear and concise policy and procedural documentation incorporating commitment to rights issues. This was of particular importance since it is this documentationthat governsthe administrativeprocess.

Yet policy and procedural developments,too, were shown to be insufficient to guarantee

effectiverights implementation.For well-developedcommunication systems, both internal

and external,were provento be centralto the disseminationof relevantlegal knowledgeto both tenantsand staff alike. And considerationof this last issuebased on the literature

review suggestedthat local authorities have low levels of professionally qualified housing

staff, a fact that partly reflects the status of the housing professionhistorically. Of particular

concern, however, was the finding that housing staff appearto receive very little training on

legal issues,despite the fact that the implementationof legal rights is a core featureof the

local authorityadministrative process.

Staff attitude seemed,prima facie, to be a strong contenderas a critical elementin

promotingor inhibitingthe exerciseof rights.Yet considerationof relevantempirical studies

could not substantiatethis premise,indeed such studies suggesting that attitudeissues were

peripheralto otherfactors such as inadequatepolicies and procedures being in place,or low

levelsof staff knowledge,the latter arisingas a resultof lack of appropriatetraining.

The CaseStudies analysed a rangeof key factorsthat affectthe implementationof legal

332 housing rights in respect of two Scottish councils. These factors were identified through the literature review. The theoretical model that was used to select these key factors was the systemstheory of organisationaldevelopment. In accordancewith this theory all aspects of organisational practice inter-relate, a dependencythat entails service administration is likely to prove ineffective where administrativeprocesses are not implementedsystemically.

In brief. effective rights implementationhinges critically on an organisational.strategy that ensuresthe integration of key organisationalelements into administrativepractice. The key elementsselected for detailedanalysis were as follows: organisationalculture and structure; policy and procedures documentation; implementation of four specific legal rights; workload andmethods of work; performancemanagement; communications and personnel matters. Althoughnot a focal point of the thesis,comment was also madeon factors that impact on the ability of tenantswithin both councilsto accesstheir rights; this suggested that the councilsperformed badly in termsof advicemade available to tenantsconcerning their legal housing rights whether through publicity or training. This issue is highlighted as an area worthy of more detailed researchfrom a rights perspective.

Organisationalculture professed commitment to rights as espousedin the corporateand departmentalpolicy documentationof both councilsthat stressadherence to the principlesof citizenship. Yet scrutiny of actual policy documentation indicated that, in respect of the legal rights under review, professedcommitment was not translatedclearly into policy documentation,indeed such documentationwas often either inadequatein terms of rights informationprovided or in omitting relevantinformation altogether. This latter point was particularlynoticeable in the caseof Council B. This indicatedthat the commitmentto rights expressedby both councilsmight lack substancein fact, an assumptionthat was scrutinisedfurther in discussionswith employeesof both councils.

333 Reasonsfor the inadequacy(and inconsistency)of policy developmentin respect of rights informationwere found to be extremelycomplex. The harmonisationand integrationof a number of predecessorcouncil policies was consideredto be extremelypertinent, for instance, especiallywhen coupled with lack of resourcesto develop and implement a range of new policies and procedures within limited timescales. In this connection policy development was perceived as being evolutionary in nature, deficiencies within policy documentationto be addressedby seniorpersonnel over time. Again, the developmentof policy documentation by a variety of different personnel, often operating in comparative isolation, was seento be a causalfactor in explaininginadequate and inconsistentpolicy development,particularly if suchofficers were not au fait with the contentsof corporate council documentationand/or relevant legal provisions.

But it would be nalivein the extremeto arrogatepolicy deficiencyto suchcriteria alone.

For seniorpersonnel - independentlyof councillors- playedboth a consciousand proactive role in policy development,a role that includedthe decisionto eitherdelete or dilute relevant rights informationfrom councildocumentation, for instance,the deletionof access-to-files information or fight-to-repair details from the Councils' tenancy agreements that were intendedto follow the Mosta Agreement.This last point, in particular,elucidates clearly the

4conscious'elements of senior officer decision-makingsince the Mosta Agreement- of which such officers were familiar - covers the particular rights under review comprehensively.

As the quote which prefacesthis Chaptersuggests, then, in assessingstrategic policy commitments,we mustbe carefulto distinguishrhetoric from reality, policy statementsthat espousecommitment to a rights-basedethos often merely an ideologicalembodiment to provide the appearanceof conformityto suchan ethos. And further scrutiny of council

334 activities revealedthat professedcommitment to rights did not always extend to actual work practiceseither, an observationthat againreveals the importanceof contextin the analysisof rights implementation.For example,neither council had establisheda systemthat fulfilled the legal and good practice requirements in respect of access-to-files or right-to-repair obligations. Again, the discrepancy between corporate council commitments to the provision of quality services that comply with legal requirementswas exemplified in the council homelessnessservice where considerationof the administrativepractices of both councils revealed an array of illegalities, illegalities that have their root cause in other organisational deficiencies primarily informational in essence. Somewhat paradoxically, however, it was also shown how unlawful practice was not synonymous with failure to protect tenant' fights. Specific council practices, on the other hand, such as security of tenure issueswere shown to conform more closely to legal requirementswith the primary exceptionof the CouncilA practiceof holdingdecrees for lengthyperiods after the eviction date specifiedin the extractdecree. This last point reflectsto someextent literature review findingsthat revealedlocal authoritypractices to vary both in consistencyand quality.

Work practicesof both councilswere shownto be basedon the genericmodel of service provision. Yet neithercouncil had assessedthe effectivenessof this form of working, in particularhow it might affect the implementationof legal housingrights. Work methods were also criticised by housing staff on account of their current workload, in part attributableto the genericwork practicesadopted by both councils. Yet detailedscrutiny of this mattersuggested that it wasless pertinent to issuesof implementationthan the failureby senior managementto implement a comprehensivepolicy and procedural framework supportive of rights. And this particular deficiencywas exacerbatedby inadequate performancemanagement systems that focus on qualitativeissues while failing to address

335 issues of rights implementation. And failure to link performance managementindicators to

espoused organisational commitments to rights exemplifies again the failure by senior

managementto implementservice delivery in a systemicfashion. Further,it is indicativeof

the rhetorical nature of strategic policy commitmentto rights.

Evaluation of informationsystems established by the two councils under review

highlighted notable deficiencies inhibiting, if not actually stymieing, effective rights

implementation. Legal rights information provided by the councils to tenants and staff was

shownto be extremelylimited, for instance,both quantitativelyand qualitatively,as well as

beinginaccurate as in the caseof right-to-repairinformation. And dearthof clear adviceto

tenants, particularly problematic given the lack of advice availablefrom other sources,was

arguably reflected in the general levels of ignorance of their rights shown by tenants

interviewed, albeit this suppositionmust be conjecturalin view of the small sample. Further,

staff training and educationneeds in particularhave been sorely neglected in both councils

I resulting in a situation whereby staff are not equippedwith the appýopriatelegal knowledge

that may be requiredif the corporatepolicy commitmentof providingservices that meet

both tenantsand client needsare to be met. This was of particularrelevance in the caseof

CouncilB that had ceasedto sponsorstaff on further educationalcourses, but had failed to

gplugthis gap' throughthe introductionof eithervocational qualifications, or detailedstaff

training programmes.

In Chapter2 avoidancetechniques used by landlordsin the privaterented housing sector

were explored,such techniqueshaving been developed by landlordshistorically to evade

their legal obligationsunder the Rent Acts. It was also noted how avoidanceof legal

obligationswas perceivedas involving actionsof a deliberatenature. In consideringlocal

authority practice it was shown that failure to implementrights effectively does not, in

336 general,stem from deliberateavoidance techniques chosen by seniormanagement. Rather, where rights are not implementedeffectively, this results from failure by senior management to implement an organisationalservice strategy that satisfiesthe principles of systemstheory.

As indicatedin the introduction,the implicationsOf these findings are extremely important from a socio-legal perspectivefor three principal reasons. Firstly, this is the first major Scottish study to a) analysein detail the broad range of factors pertinentto the implementationof housingrights and b) evaluatethe relative importanceof individual factors to the implementationprocess. The identification and analysisof key organisational. elementsis of particular interest for implementationtheory given that previous studies have neglectedthe important area of rights implementationwithin the administrativeprocess.

Secondly,this studyis innovativeinsofar as it representsthe first studyto exaniinethe implementation of housing fights from a theoretical perspective based on organisational systemstheory. Application of systemstheory to evaluateorganisational practice elucidates that effective rights implementationdepends on a holistic approachto service delivery involvingthe harmonisationof a numberof key organisationalactivities.

Finally,the theoreticalmodel developed in this thesisis importantfrom the perspectiveof improvingrights implementation within the publichousing sector. Throughidentification of the specific elementsnecessary for the effective implementationof housing rights, this study provides organisationswith theoretical insight required for developing organisational, strategies that are conducive to service administration, including the effective implementationof housingrights.

What, then,is to be saidin summingup? The questto identifythe key factorsthat inhibit or promote effective fights implementationhas, undoubtedlyproven to be extremely complexin nature,effective implementation essentially dependent upon a numberof inter-

337 connecting elements. Political, ideological and fiscal policies influence organisational cultures and policies, for instance,the latter in particular of significancein the context of the

NPM culture, a culture that is in essencecost and performance managementdriven. The substantialimpact upon local authoritiesof Local Governmentre-organisation has been critical, too, requiring both councils under review to initiate major policy and procedural changeswithin extremelylimited timescales.

Yet the organisationaldeficiencies examined in respectof both councils cannot be apportioned to extraneous influences alone. For senior managers, responsible for organisational development in practice, retain autonomy either to promote or disregard a rights culture, albeit such choiceis affectedby fiscal constraints. Indeed, it is with such personnel that responsibility lies for synthesisingthe-various elements that are critical in developing an effective rights culture: the establishmentof clear and consistent policies imbued with rights; the incorporationwithin the workplace of clearly detailedwritten proceduresthat incorporateall relevantlegal provisions; the establishmentof work practices and audit systemsthat link to organisationalobjectives; the provision of comprehensive communication networks to ensure that legal rights information passesfreely, not merely internallybetween the organisationalechelons, but externallyto tenantsand clients alike; the establishmentof detailedtraining programmes for staffthat focuson housinglaw andthe practicalapplication of that law to the administrativeprocess and monitoringstaff attitudes to ensurethat they reflect organisationalcommitment to rights. And failure by senior managementresponsible for organisational strategy to implement services in a systemic fashionis likely to result in ineffectiveimplementation of legal housingrights. The thesis ends,then, on a note of caution! No matterthe organisationalpolicy statementsthat express commitmentto rights,the celebratedLatin aphorismremains apposite when analysisof such

338 policies, and related work practices,takes place: "Cum grano salis".

339 LIST OF REFERENCEP

Council A: Allocation Polipy

Council A: Best Value

Council A: Community Plan

Council A: Customer Charter

Council A: HousinREstate ManaizementProcedures

Council A: HousinizFacts

Council A: HousinRPack

Council A: HousinRPlan

Council A: Housin Rent Arrears Procedures

Council A: HousinR ServicePlan

Council A: Repairs and MaintenancePolicies

Council A: SecureTenancy Agreement

Council A: Tenants' Pack

Council B: Allocations Polipy

Council B: Code of Conduct

Council B: Community Project

Council B: Draft RepairsPolipy

Council B: Equal Opportunities PgliU

Council B: Estate ManagementPolicy Manual

Council B: HomelessnessPolicy

Council B: HomelessnessService

Council B Joint Working Group: Housing ManagementDatabase

*Specifictitles havebeen amended and datesdeleted to preserveanonyn-dty

340 Council B: Housing Plan

Council B Working Group: Housing Report

Council B: Manager's Handbook

Council B: Rent Control Poli

Council B: SecureTenancy Agreement

Council B Strategy Unit: Statistics

Council B: Tenant Participation Roligy

Council B: Void Poligy

341 Biblioiiraphv

Accounts Commission (2000): Managing Rent Arrears, GettinR the Balance Right, Scottish Homes

Adler M, I-EmsworthC Kerr S (1985): Public Housing, Rent Arrears and the Sheriff Court Scottish Office

Alcock P, PearsonS & Craig G (1996): 'Citizenship, Empowermentand the Poor', in Local GovernmentPolipy Making, Vol 22, No 9, March, Pitman

Allott A (1980): The Limits of-Law, Butterworth

Ambrose D (1996): Healing the Downsized Organisation,Harmony Books

Armstrong M (1995): PersonnelManagement Practice, Kogan Page

Ascher K (1983): 'The Politics of Administrative Opposition - Council House Salesand the Right-to-Buy in March/April, Local Government Studies

Atherton G (1983): Terms of Tenana - An Analysis of New LeasesIssued to Public Sector Tenantsin Scotland, Scottish Consumer Council

Atkinson R, Mullen T & Scott S (2000): The Use of Civil Legal Remediesfor Neighbour Nuisance in Scotland, Scottish Executive Central ResearchUnit

Audit Commission(1986): Managing the Crisis in Council Housing, HMSO

Ball M (1983): Housing Poligy and Economic Power - The Political Economy of Owner Occupation,Methuen

BarbaletJ (1988): Citizenship,Open University Press

Bayley R (1997): Tearn Earn', in Housin June, CIOH and ,

Bean J& Hussey L (2000): The Public Sector ManageE,HB Publications

Beaumont PB (1993): Human ResourceManagement - Kgy Concepts and 5kills, SAGE

Beck M & WoolfsonC (1999): GlasgowCampaign Against Housing Stock Transfer, Scottish CriticalPolicy Studies,University of Glasgow 342 Benson H (1979): The Royal Commissionon Legal Services- Final Report, Volume One, HMSO

Bichard M (1994): 'Change and Managing it in the Benefits Agency', in Managing Changein the New Public Sector, ed Lovell R, Longman

Bines W, Kemp P, PleeceW & Radley C (1993): ManaRinRSocial Hou"n DoE, HMSO , Boyne G (1998): 'Public ServicesUnder New Labour: Back to BureaucracyT, in Public Mongy and Management,July/September, CIPFA

Breitenbach E (2000): ResearchingEthnic Minorities in Scotland Scottish Executive Report of Workshop held on 2 March

Bridges L, Meszaros G & Sunkin M (1995): Judicial Review in Perspective,Cavendish

Brown P (1987): Dampnessand the L Shelter

Brown P (199 1): 'Eviction - Sheriffs must considerwhether Making an Order is Reasonable',in Scolag,December

BuchananD& Huczynski a (1997): OrganisationalBehaviour, Prentice Hall ?

Bullock P& Yaffe D (1975): "Inflation, the Crisis and the Post-War Boonf ', RCG

Bumett J (1986): A Social Histoly of Housing 1815-1985,Routledge

(2000): Burrows B Mongy Advice Servicesin Scotland-A Time to Reflect Money Advice

Burrows L& HunterN (1990): ForcedOut. Shelter

BumsR(1986): EssentialPVchologY, MTP PressLtd

Caimcross L, ClaphamD & Goodlad R (1989): Tenant Participation in Housing Management,Institute of Housinp-/TPAS

CaimcrossL, ClaphamD & GoodladR (1997): HousingManagement. Consumers and Citizens, Routledge

CannadineD (1998): Classin Britain, Penguin

343 Canning R (2000): "The Rhetoric and Reality of ProfessionalCompetence-Based Vocational Education in Scotland', in ResearchPapers in Education, 15 (1), Taylor & Francis Ltd

CDP (1977): Limits of the Law, Community Development Project

Centre for Housing Research (1989): The Nature and Effectiveness of Housing Management, HMSO

Chambers(1994): ChambersThesaurus A-Z) Chambers

CHAC (1959): Councils and Their Houses- Managementof Estates, 8th Report, HMSO

ChapmanE (1995): Attitude - Your Most PricelessPossession, Crisp

CIOH (1998): Model SecureTenancy Agreement, CIOH

CIOH (1999): New Housing Partnerships- Stock Transfer: Answering the Questions,CIOH

CIOH (2000): 'Best Value for Housing Staff, Good Practice Briefing No 17, March, CIOH

CIOH (2000): Putting People First - the Housing Challenge for the Scottish Parliament, CIOH

ClaphamD (1987): 'The New Face of Public Housing', in Public Housing: Current Trends and Future Developments,Editors Clapham.D and English J, Croom Heim

ClaphamD (1989): Goodbye Council Hoqdng?, Unwin

ClaphamD, Kemp P, & Smith S (1990): Housing and Social Poicy, MacNfillan

ClaphamD, Kintrea K, Malcolm J, Parkey H, & Scott S (1995): A BaselineStudy of Housing ManAgementin Scotland, HMSO

ClaphamD& SatsangiM (1992): 'PerformanceAssessment and Accountability in British Housing Management'in Polipy and Politics, Vol 20, No

Clarke A(I 98 1): 'An Outline Of Housing Law', in Best Practice in Housing, BRT

344 Cockbum C (1978): The Local State- Managementof Cities and People, Pluto Press

Cole I& Furbey R (1994): The Eclipse Council Housin Routledge of , Collins S& O'Carroll D (1997): Anti-social Behaviour and Housiniz: The L Chartered Institute of Housing/Legal ServicesAgency

Corbett G (2001): Monitoring the Crime and Disorder Act, 1998, CIOH

Corry D, Le Grand J & Radcliffe R (1997): Public/PrivatePartnerships -A Marriage of Convenienceor a PermanentCommitment?, Institute for Public Policy Research

Cosla (1999): National Code of Conduct, COSLA

Cotterrell R (1992): The Sociology of Law, Butterworths

Cowan D (1999): Housing Law and PoliU, MacMllan

Coyle J (1985): "Secure at Last", in Roof November/December,Shelter

Cranston R. (1979): RepulatinizBusiness. Law and ConsumerAgencies MacNfillan

CRE (1991): Code of Practice in Rented Housing: for the Elimination of Racial Discrimination and The Promotion of Equal Opportunities. Commissionfor Racial Equality

Cross R (1995): Statuto[y InteMretation - Yd ed G Bell J and Engle G, Butterworths

Cullingworth JB (1979): Essgyson Housing Polia - the British Scene,Allen & Unwin Ltd

Dailly M (1993): 'The Law of Specific Implement', in Scolag

Darke J& Darke R (1979): Who NeedsHousing?, the MacMIlan Press

Davies R (1998): Dark Heart - The ShockinjaTruth about Hidden Britain Vintage

(1987): DauntonMJ A PropertyOwning Democrag? - Housingin Britain2Faber & Faber

(1998): Modemising Local DETR Govemment- Improving Local Services through Best Value, HMSO

345 Dickson A (1989): Recove!3ý of Possessionof Heritable Property: Eviction. ProceduralIssues, Legal ServicesAgency Ltd

Dunleavy P & Hood C (1994): 'From Old Public Administration to New Public Management',in Public Money & Management,July-Sept

Dutfield M& Eling C (1994): 'CommunicationsDuring Change', in Managing Changein the New Publiq Sector, ed Lovell R, Longman

Ehrlich E (1936): FundamentalPrinciples of the Sociology of Law) Harvard University Press

Elliott L& Atkinson D (1998): The Age of Insecurity, Verso

Englander D (1983): Landlord and Tenant in Urban Britain 1838-1918, Clarendon

Evan WM (1980): "Law as an Instrument of Social Change", in The Sociology o Law -A Social Structural Perspective,The Free Press,New York

Evaskitas J (1984): "Discretion in the Allocation Systenf', Internal GDC Housing DepartmentReport

Farrant S, Mullan AK, & RamsayE (1994): Strategiesfor Training Housing Managers, Chartered Institute of Housing

Fennell P (1986): 'Roberts v Hopwood: the Rule Against Socialism', in Journal Law Societ Vol 13, No 3. of and ,

Finnis(1977): 'The privatelandlord is deadbut he won't lie down, in Roof, July, Shelter

FlynnN (1990): PublicSector Management, Harvester Wheatsheaf

Forrest R& Murie A (1985): An UnreasonableAct? Central-Local Government conflict and the Housing Act 1980, University of Bristol, SAUS

Murie A (1988): Selling Forrest R& the Welfare State- The Privatisation of Public Housing, Routledge

FrancisReport (1971): 'Report of the Committeeon the Rent Acts', CMND 4609) HMSO

346 Fowler A (1980): PersonnelManagement in Local Government)Institute of PersonnelManagement

FreemanM (1994): Lloyds Introduction to Jurisprudence,Sweet & Maxwell

Furbey R, Wishart B & Grayson J (1996): 'Training for Tenants;'Citizens and the Enterprise Culture', in Housing Studies,Vol 11, No I

Gallagher P (1982): 'Ideology and Housing Management', in The Future of Council Housing, ed English J, Croorn Helm

Galligan D (1986): DiscretionaU Powers -A Legal Study of Official Discretion Clarenden

Gamble A (1994): The Free Economy and the Strong State, MacNfillan

Gay 0 (1986): The Private Rented Sector and Rent Control.,House of CommonsLibrary ResearchDivision, Background Paper No 189

Goodlad R (1986): Telling the Tenants-A Report on Written Materials Producedby Scottish Public Landlords for their Tenants Scottish ConsumerCouncil

Goodlad R (1999): A New Housing Vision of Scotland,Labour Housing Group

Goodlad R & Williams R (1994): 'Housing' in Poor and Paying for it - the Price of Living on a Low Income, ed Fyfe G, HMSO

Goodlad R& Rosengard A (1998): Housing Advice in Scotland, Shelter

Griffith J (1997): The Politics of the Jud Fontana

Gyford J (1991): Citizens.Consumers and Councils - Local Governmentand the Public,MacMillan

Habets B (1992): The GovemmentBenefits Handbook: How to Collect Grants and Benefits from the Govemment, Camell Ltd

Hague(1990): 'The Developmentand Politics of TenantParticipation in British CouncilHousing', in HousingStudies, Vol 5, No 4, CHRUS,University of Glasgow

Halliday S (1999): 'JudicialReview and Administrative Justice: a studyof administrativedecision-making in threelocal government homelesspersons unite', PhD thesis,University of Strathclyde 347 Halliday S (2000): "The Influence of Judicial Review on Bureaucratic Decision- Making", in Public Law, Spring 2000, Sweet & Maxwell

Harnbleton R (1988): 'Consumerism.Decentralisation and Local Democrapy' in Public Administration, Volume 66

Hamilton W et al (1993): The Scottish Building Regulations. (LExplainedand Illustratedl Blackwell

Handy C (1985): UnderstandingOrganisations, Penguin

Handy C (1993): UnderstandingOrizanisations, Penguin

Handy C (1997): 'No Place for the Prima Donna', in ManagementTod

Harloe M (1985) Private Rented HousinRin the United Statesand Europe Croom Helm

Harlow C & Rawlings R (1997): Law and AdministrationsButterworths

Harrison R (1989): Training and Development,Institute of Personnel Management

Harvey J (1999): 'Why performanceindicators won't work', in Axis, Oct/Nov

Hender D (1993): Managing Local Govemment Services)ICSA

Herman R (1999): Keeping Good People, Oakhill Press

HirnsworthC (1994): HousingLaw in Scotland,Planning Exchange

Hoath D (1989): Public Housing L, Sweet & Maxwell

Hoggett P (1996): 'New Modes of Control in the Public Service'qin Public Administration. Vol 74

Hogwood B & GunnL (1990): Polia Analysisfor the RealWorld, Oxford UniversityPress

Holland M (1965): 'Report of the Committee on Housing in Greater London', CMND2605, HMSO

Hooton S (1996): A to Z Housing Terrainolo Chartered Institute of . of Housing

HSAG (undated): TenanU Agreements:DOE

348 Hudson B (1997): 'Michael Lipsky and Street Level Bureaucracy-A Neglected Perspective',in The Poligy Process,ed Hill M, Prentice HarvesterWheatsheaf

Hughes D& Lowe S (1995): Social Housing Law and Policy, Butterworths

Hunter C (1995): Tenant"Ri hts, Lemos

Hunter C& SelmanA (1996): Compulsory Competitive Tendering of Housing Management, Lemos and Crone

Hurry J (1921): Poverty and its Vicious Circles, Joe & Churchill

Hutchinson A (1985): 'The Rise and Ruse of Adnýnistrative Law and Scholarship', in Modem Law Review, Vol 48

Industrial Society (1999): 'Best Value', ManagementFact Sheets,Industrial Society

IoH (1986A): House Sales: The ManagementImplications, Institute of Housing

IoH (1986B): Education and Training in the Scottish Housing Service, Institute Of Housing

Ioll (1990): Education and Training Surygy 1988/89 Institute Of Housing

IoH (1993): The Housing ManagementStandards ManuaL Institute Of Housing

JacobsK& Manzi J (2000): 'PerformanceIndicators and social construction: conflict and controlin housingmanagement', in Critical SocialPolipy, No 63, SagePublications

Jennings1 (1935): 'Courtsand Administrative Law - the experienceof English HousingLegislation', in HarvardLaw Review,Volume 49

JessupG (199 1): Outcomes, NVQ's and the Emerging Model of Education and Training, Falmer Press

Jew P (1994): Law Order in Private and Rented HousinR- Tackling Harassmentand Illegal Eviction, Campaignfor Bedsit Rights

JohnsonM (1999): FailinR School. Failing City, Carpenter

JonesG (1986): 'The RelationshipBetween Central and Local Government's in PublicLaw andPolitics, Sweet & Maxwell

349 Kay A, Legg C & Foot J (1986): 'The 1980 Tenants' Rights in Practice -A Study of the Implementationof the 1980 Housing Act right by Local Authorities, 1980-1983', Housing ResearchGroup. The City University

Kemp P (1995): 'ResearchingHousing ManagementPerformance', in Urban Studies,Vol 32, Nos 4/5, May

Kempson E (1996): Life on a Low Income, JosephRowntree Foundation

Keoghan A & Scott S (2000): Education and Training for the Millennium CIOH

Kerley R (1994): Managing in Local Govemment,MacNEllan

Kilroy B & MacIntosh N (1982): Housing and the Economy -A Priorily for Reform Shelter

Laffin M (1989): Managing Under Pressure- Industrial Relations in Local Government,MacMillan

Laffin M& Young K (1990): Professionalismin Local Government,Longman

Laski H (1925): 'Judicial Review of Social Policy in England', in Harvard Law Review, Volume 39 1

Lawton A& Rose A (1994): Organisationand Managementin the Public Sector, Pitman

LeabeaterD& MulcahyL (1996): Puttingit Right for Consumers.A Reviewof Complaintsand RedressProcedures in Public Services,NCC

Leckie S (1995): 'The Right to Housing, in Economic, Social and Cultural Rights, ed Eide A, Krause E, & RosasA, Martina Nijhoff

Legg C, Kay A, Mason J & Nicholas K (198 1): Could Local Authorities be Better Landlords. An Assessment of How Councils ManaRetheir Housing, Housing Research Group, the City University

Legge K (1995): Human ResourceManaizement - Rhetorics and Realities Macnfillan

Letwin S (1992): The Anatomy of Thatcherism,Fontana

LGTB (1990): Developing Managers in Housing Organisations, Local Government Training Board

350 Lipski M (1980): StreetLevel Bureaucracy- Dilemmas of the Individual in Public Service,Russell SageFoundation

Lister R (undated): The Exclusive Society- Citizenship and the Poo CPAG

Littlewood A & Munro M (1998): "What Future for the Right to Buy?", in Environment & Planning,A, Volume 30 Local Government Ombudsman(1996): Annual Report 1995/96,Commissioner for Local Administration in Scotland

Local Government Ombudsman(1997): Annual Report 1996/97,Commissioner for Local Administration in Scotland

Logie J & WatchmanP(1990): The Local Ombudsman,T&T Clark

Loughlin M (1992): Public law Political Theo Clarendon and , Loveland 1 (1995): Housing HomelessPersons, Clarendon

McCarthy P, SimpsonB, I-Ell M, Walker J& Corlyon J (1992): Grievances,Complaints and Local Government,Avebury

McIntosh A (1995): 'Housing Benefit Overpayments',in May, Scolag

McKeating D (1998): 'HomelessnessPolicy and Local GovernmentReorganisation, StudentPostgraduate Diploma Thesis,Edinburgh College of Art/Heriot Watt University

McKeon R (1973): 'Politics' in Introduction to Aristotle) University of Chicago Press

MacPherson,C (1985): TheRise and Fall of EconomicJustice and other Ess4ys, OxfordUniv Press

Madge N (1988): 'Licence for Confiision', in R-O-OffMarch/April, Shelter

Madge N (1998): Housing Law Casebook,Legal Action Group

P (1990): Reshaping Malpass Housing-Policy- Subsidies,Rents and Residualisation,Routledge

351 Malpass P (1996): 'The Unravelling of Housing Polipy in Britain' in Housing Studies,Volume III, No 3,Carfax

Malpass P & Murie A (1994): Housing Poligy and Practice,MacNlillan

Malpass P & Warburton M (1997): 'Implementing Changein Housing Policy: the Introduction of the New FinancialRegime for Local Authority Housing, in Housing Financeand Subsidiesin Britain, eds MaclennanD& Gibb K, Avebury

Marsh A (1998): 'Processesof changein housingand public policy', in_HousLng and Public Policy - Citizenship,Choice and Control, editors Marsh A and Mullins D, OpenUniversity Press

Marshall TH (1950): Citizenshipand Social Class,Pluto

Marx K (1942): 'The EighteenthBrumaire of Louis Bonaparte' in Selected Works, Vol 2, Lawrence and Wishart

Mason S, Rose-Troup M, in & Jones N (1995): Rent Arrears Actions the Sheriff Court - Are Sheriffs Considerin Reasonableness?,Shelter

Mason T (1991): 'Tenant and Landlord Relations', in The Housing Service of the Future, edsDonnison D& MacLennanD, Longman

Megarry R (1967): The Rent Acts, Vol 1, Stevensand SonsLtd

Meikle S (1985): Essentialismin the Thoujzhtof Karl Marx, Duckworth

Merrett S (1979): StateHousing in Britain, Routledge & Kegan Paul

Merrett S (1982): Owner-Occupationin Britain, Routledge & Kegan Paul

Mintzberg H (1973): The Nature of ManagerialWork, Prentice-Hall Inc

Nfitchell J (1995): Eviction and Rent Arrears, Shelter

Monies G (1996): Local Governmentin Scotland,W Green/Sweet& Maxwell

(2000): The Crime & Disorder Moore Act 1998 - the Use of Section 23 Evictions for Anti-social Behaviour, CIOH Morris J& Winn M (1990): Housing and Social Ineg!La jity, Hilary ShipmanLtd

Mullen T, Pick K & ProsserT (I 996A): Judicial Review in Scotland,John Wiley & Sons

352 Mullen T, Scott S, Fitzpatrick S & Goodlad R (1996): Tenancy Rights and Repossession Rates - In Theory and Practice, Scottish Homes

Mullins D (1998): 'Rhetoric and reality in housingpolicy' in Housing and Public Policy - Citizenship,Choice and Culture, Open University Press

Mullins D& Niner P (1998): 'A prize of citizenship?Changing access to social housing', in Housing and Public Policy - Citizenship,Choice and Control, Open University Press

Mullins L (1996): Managementand OrganisationalBehaviour, Pitman

Murie A (1996): 'Home Ownership', in Housing in Scotland, Chartered Institute of Housing

Murphy C (1997): 'SomethingMust be Done - Social Division, Social Housing', NFHA

Murray A& SteedmanH (1998): Growiniz Skills in Europe: The ChangingSkill Profiles of France.GermaLiy, the Netherlands,Portugal, Swedenand the UK, The Centre for Economic Performance

NCC (1976): TenancyAgreements, National ConsumerCouncil

NCC (1991): Housing ComplaintsProcedures: Principles of Good Practice for Social Landlords, National ConsumerCouncil

NFHA (1987): Standardsfor Housing Management,NFHA

Niner P (1975): Local Authority Housing Policy and Practice, Centre for Urba; and Regional Studies

Niner P& Karn V (1985): Housing Association Allocations: Achieving Racial Equality - A West Midlands CaseStud RunnymedeTrust , Nixon J, Hunter C, Smith Y & Wishart B (1996): Housing Casesin the County Court, the Policy Press,University of Bristol

O'Carroll D (2000A): The Human Rights Act, 1998, the CharteredInstitute of Housing

353 O'Carroll D (200013): The Data Protection Act 1998, the CharteredInstitute of Housing

O'Carroll D& McFadden J (1999): 'The Case for a Housing Tribunal', in Scolag, Issue 264

Offe C (1984): Contradictionsof the Welfare State, Hutchinson

Page A (1999): 'The Citizen's Charter and Administrative Justice', in Administrative Justicein the 21" Centu edsHarrisMand Partington M, Hart Publishing

Parenti M (1998): HistoEy Myste City Lights Books as ,

Park J (1998): 'As I was saying...', in Housing and Planning, Vol 53, No2, April/May, HCT/NHT pc

Partington M (1993): 'Citizenship and Housing', in Rights of Citizenship, ed Blackburn M, Marshall PublishingLtd Partington M & I-Ell J (1991): Housing Law: Cases,Materials and Commenigry, Sweet & Maxwell

PatersonA, Bates J (1993): The Legal Systemof Scotland, Sweet and Maxwell

PearceF (1976): Crimes of the Powerful, Pluto

Pepper A (1992): Managing the Training and DevelopmentFunction Gower

Peters T& Waterman R (1982): In Searchof Excellence- Lessonsfrom America's Best Run Companies,Harper Collins

Pilger J (1998): Hidden Agendas,Vintage

Pinto R (1995): 'Housing Developmentsin the 1980's and 1990's, in Developmentin Housing Managementand Ownership, ManchesterUniversity Press

Plant R (1988): Citizenship.Rights Socialism Fabian Society No 53 1, and 3 pub by the Fabian Society

Pollitt C (1988): 'Editorial: Consumerismand Beyond', in Public Administration, Vol 66, No 22.

Pounder C, Kosten M, PapadopoulosS& Rickard A (1987): Managing Data Protection, CIPFA

354 Power A (1993) Hovels to High Rise in State Housiniz in Europe Since 1850, Routledge

Power M (1997): The Audit Society: Rituals of Verification2 Oxford University Press

Prior D, Stewart J & Walsh K (1995): Citizenship: Rights, Community and Participation, Pitman

Provan B & Williams P (199 1): 'Joining the Professionals?The Future of Housing Staff and their Work, in The Housing Serviceof the Future, Eds Donnison D& MacLennanD, Longman

Reid R, Hills S & Kane S (2000): Learnina New Tricks: Education and Traininizfor OrganisationalDevelopment in HogaLng,produced by the SheffieldHallam University ResearchTeam, Key Potential UK

Rhodes RA (1987): 'Developing the Public ServiceOrientation', in May/June, Local GovernmentStudies

Rigby R. (1998): 'The Alchemy of Complaint Management',in April, ManagementTodgy

Robertson D & McLaughlin P (1996): Looking into Housing -A Practical Guide to HoqLng Research,CIOH

Robson P (1979): Housing & the Judiciary: A Study of Late 19'hCentuEy Judicial Practice in Scotland,PhD Thesis,University of Strathclyde.

Robson P (1994): ResidentialTenancies, W Green/Sweet& Maxwell

Robson P & Poustie M (1996): HomelessPeople and The Law, 3rd ed, Butterworths

Robson P& Halliday S (1998): ResidentialTenanci-es, 2nd edition, W Green/Sweet& Maxwell

Rowntree Foundation(1998): Findings- Reviewingthe Right to Buy, JosephRowntree Foundation

RunnymedeTrust (1982): Britain's Black Population, Heinemann

355 SaundersP (1993): Social Theojy and the Urban Question, Routledge

SaundersR (1993): The New Housina Manage PEP Ltd ,

Schneider(1992): 'Discretion and Rules: A Lawyer's View', in The Uses of Discretion, ed Hawkins K, Clarendon

Scott S, Currie H, Dean J, Kintrea K (200 1): Good Practice in Housing Management CaseStudies, Conclusionsand Recommendations,Scottish Executive Central ResearchUnit

Scott S (1993): 'Education & Training for Change', SummaryReport, Institute of Housing in Scotland

Scottish Executive (1999): Housing and anti-SocialBehaviour: The Wgy Ahead Scottish Executive DevelopmentDepartment

Scottish Executive (1999A): StatisticalBulletin, August, Scottish Executive

Scottish Homes (1998): Framework for a National Strategy for Housing Information and Advice, Scottish Homes, DiscussionPaper

Scottish Housing Advisory Committee (1967): Allocating Council Homes - Report of the Sub-Committee on Allocation of Council Tenancies, SDD

Scottish Office (1997): Code of Guidanceon Homelessness)Scottish Office

Scottish Office (1998): Crime and Disorder Act 1998: Anti-Social Behaviour as a Ground for Eviction, Circular 27, Scottish Office

Scottish Poverty Information Unit (1999): Poverty in Scotland 1999, Glasgow CaledonianUniversity

SHA (1977): Socialismand Housing Action - The Red Paper on Housing, Anvil Printers Ltd

Shelter(undated): Shelter(Scotland) Guide to the Tenants'Rights Etc (Scotland)Act, 1980Public Sector Provisions, Shelter (Scotland)

Shelter (198 1): Housing Financein Scotland, Shelter

Shelter (1982): Council House Allocation in Scotland, Shelter

Shelter (1984): Evasive Action- A Study of Rent Act Evasions in Glasgow, Shelter

356 Sim D (1995): The Scottish House Factor -A Study in Housing Manap,ement, University of Stirling

SLGIU (1995): The Guide to ScottishLocal Government, Scottish Local GovernmentInformation Unit

SLGIU (1996): 'Housing Issuesin Scotland', 2nd ed, July 1996, Scottish Local GovernmentInformation Unit

Smith M (199 1): Analysing OrganisationalBehaviou MacMillan

Spicker P (1988): 'Wrong Foot Forward', in Roof, Jan/Feb,Shelter

Spicker P (1995): Social Polipy - Themesand Approaches,Prentice Hall/ HarvesterWheatsheaf

Spicker P (1998): Housing and Social Exclusion, Shelter

StanforthJ, MalcolmJ &MacLennan D (1986): The Delive!y of Repair Servicesin Public Sector Housing Scotland,Scottish Office

Stewart A (1996): RethinkinizHousing L, Sweet and Maxwell

Stewart R (1985): The Reality of Management,Pan

Stewart J& Walsh K (1992): 'Changesin the Managementof Public Services, in Public Administration, Vol 70

Stoker G (199 1): The Politics of Local Government,MacMillan

SYHN (2000): Younp,Homeless People Speakfor Themselves,Scottish Youth Housing Network

Thane P (1982): The Foundation of the Welfare State,Longman

The Accounts Commission (1993/94): PerformanceInformation for Scottish Councils, The Accounts Conunission.

The Law Society (1992): Glossary: Scottish Legal Terms, Latin Maxims and European Community Legal Terms, Butterworths

Townsend P (1979): Poverty in the United KinadornýPenguin

TPAS (undated): "Tenant Information -A Good Practice Guide', Briefing Note, TPAS

Twine F (1994): Citizenship and Social Rights, SagePublications

357 University of Stirling (1994): Good Practice in Housing Management- Tenanu Participation, Good PracticeNote 4, Scottish Office

University of Stirling (1995): Good Practice in Housing Management- Tenanu Management,Good PracticeNote 5, Scottish Office

University of Strathclyde (1989): A Training Revolution? The Experienceof Scotland DiscussionPaper No 1, University of Strathclyde

Wade E & Phillips G (1977) ConstitutionalAnd AdministrativeLaw, Longman

WadhamJ& MountfieldH (1999): Blackstone's Guide to the Human Rights Act 1998, Blackstone

Walker D (1990): CustomerFirst -A Strategyfor QualityService, Gower

Walker D (1992): The Scottish Legal System,Green/Sweet & Marshall

Walker R (1998): 'Social Housing Management', in Bgyond Bureaucrapy? The Professionsin the Contemporgy Public Secto ed Laffin Ashgate

Walker R (2000): 'The ChangingManagement of Social Housing: The Impact of Externalisationand Managerialisation, in Housing Studies, Vol 15, No 2, Carfax

Warburton M (1995): 'The ChangingRole of Local Authority Housing Departments', in Developmentin Housing Managementand Ownership,ed Pinto R, ManchesterUniversity Press

WatchmanP (199 1): The Housing (Scotland) Act 1987, W Green/Sweet& Maxwell

Pirst Whitham D (1982): 'The Sixty Years of Council Housing', in The Future of Council Housing, ed English J, Croom Helm

Widdison R (1982): "Detecting ShamLicences", in Koof, Jan/Feb,Shelter

WiddowsonB & HarlandM (1998): HousingInformation and Advice Services: The Position Reviewed,Homepoint

Williams T (1996): Dealing with CustomerComplaints, Gower

358 Wilson R (1999): The Skills and Training Agenda: The Results of an IoD Surva, IoD

Wilson D, Game G (with Leach S& Stoker G) (1994): Local Governmentin the United KinRdom, MacNfillan

Winch C (2000): New Labour and the Future of Training, Impact No 4, ed White J, Philosophyof Education Society of Great Britain

Young J (1979): The Rousing of the ScottishWorkjag-ý, Croom Helm

Under Local Government Act Vincent -Jones P (2000): 'Central - Local Relations the 1999: A New ConsensusT,in The Modem Law Review, 63.1 January, Blackwell

359 Appendix 1: Ihterviewees

360 CouncilA Interviewees

A total of nineteenhousing staff, or c 3% of all housing staff were interviewed. This figure comprises a substantialproportion of senior officers and over 10% of area office staff in respect of the two offices surveyed. Although precisedetails of postholders are withheld for reasonsof confidentiality, the total is madeup as follows:

Senior Officers Thirteen

Officers: Six

Othe : Three (two tenants,one lawyer)

361 Council B Interviewees

A total of twenty eight housing staff, over c4% of all housing staff were interviewed. Like

Council A, this figure comprisesa substantialproportion of senior officers and over 10% of area office staff in respect of the two offices surveyed. Again, details of postholders are withheld to preserveconfidentiality:

Senior Officers Fifteen

Officers: Thirteen

Other: Three (two tenants,one lawyer)

362 Appendix 2: Topic Guides

363 orp, anisation ...... Officer's Name ...... Job Title ...... Service (Date StartedEmployment ) Length of ...... Oualifications:

lousing as a Career

364 INTERVIEW SHEET: ACCESS TO FILES ISSUES

1.

(a) What measuresare taken to protect applicants'/tenants'confidential information?

(b) Whatlegal obligations are there?

2.

(a) Is there a Council policy on Accessto files?

Yes 11

No 13

Don't Know 1:1

(b) Could you identify 4 main aspectsof the policy?

365 (a) What is the role of the Council's lawyers in developingthis policy?

3.

(a) Who of the following havethe right to accesstheir personalfiles?

Tenants

HousingList Applicants

HomelessnessApplicants

FormerTenants

In what wayscan tenants request access to their files?

In Writing 13

Verbally

TenantRepresentation

4.

(a) Can the Council chargefor providing information requested?

Yes

No

Don't Know

(b) What is this fee?

366 5. What is the legal timescale by which the Council must process requests for information?

6. In what situationswould the tenant be refusedaccess to personalinformation held by the Council?

7. What appealrights exist for a tenant unhappywith what personalinformation is held by the Council on file?

8.

(a) What accessto file training haveyou had in respectof the following?

Law 11

Council Policies

Council Procedures

Other

None

367 (b) What were your views on this training?

9. Any other comments?

368 orp, anisation ...... Officer's Name ...... job Title ...... Length Service (Date StartedEmployment ) of ...... Qualifications:

&easonos for Choosin Housing as a Career Gtl(- -

369 INTERVIEW SHEET: HOMELESSNESS ISSUES

1.

(a) Doesthe Councilhave a policy on homelessness?

Yes 13

No

Don't Know

(b) Do you know what the main points of the policy are?

(c) What do you seeas the difficulties in implementingthis policy? (size of stock etc)

(d) How are tenants/thepublic informed of the policy?

370 (e) What is the role of lawyers in respectof this policy?

(f) Are lawyers involved in decisionmaking? If so, how?

2.

(a) How do you processhomeless applications?

(b) What arethe mainlegal obligations in processingsuch applications?

371 3.

(a) What is the Code of Guidance?

(b) Do you know what the Council'sview of the Codeis?

4.

(a) What is the Council's policy on priority need?

......

I (b) What is the Council's policy on intentionality?

372 (C) What is the Council'spolicy on local connection?

(d) When do you refer an applicantto another authority?

......

5.

(a) What perfon-nancetargets do you haveto meet in relation to homelessness?

(b) Have you heard of the Accounts Commission/Instituteof Housing performance targets?

6.

373 (a) Whathomelessness training have you hadin respectof the following?

Law

Code of Guidance

Council Policies

Council Procedures

Other

None 13

(b) What were your views on this training?

Any other comments?

374 Orsianisation ...... Officer's Name ...... Job Title ......

Length of Service (Date Started Employment ) ...... Qualifications:

Reason(s)for Choosing,Housing as a Career

375 INTERVIEW SHEET: REPAIRS

1.

(a) Doesthe Councilhave a repairspolicy?

Yes

No

Don't Know

(b) Could you identify 4 main aspectsof the policy?

(c) How are tenants/thepublic informed of the policy?

What is the role of lawyersin respectof this policy?

376 2.

(a) Does the Council have legal repairs obligations?

Yes 13

No 11

Don't Know 11

(b) Can you namethese legal obligations?

(C) Do legal obligations causethe Council practical difficulties?

(d) Cantenants waive their protectionsin the lease?

Yes 1:1

No 13

Don't Know 13

377 3.

(a) What do you know of the Right-to-Repair Scheme?

(b) Tell me how it works here.

(c) Do you ever have to give tenantscompensation?

378 4.

(a) Do tenants have a right to withhold rent if the Council fails to carry out its repair obligations?

Yes

No

Don't Know

(b) If yes, what should the tenantsdo?

(C) Does this ever happen?

Do tenantsknow aboutit?

379 (e) What doesthe Councildo if this happens?

5.

(a) What performancetargets do you haveto meet in relation to repairs?

(b) Have you heard of the Accounts Commission/Institute of Housing performance targets?

380 6.

(a) What repairs training haveyou had in respectof the following?

Law 13

Council Policies 11

Council Procedures 11

Other

None

(b) What were your views on this training?

7. Any other comments?

381 OrRanisation ...... Officer's Name ...... Job Title ......

Leng1h of Service StartedEmployment ) ...... -ate ...... Qualifications:

Reason(s)for ChoosingHousing as a Career

382 INTERVIEW SHEET: SECURITY OF TENURE ISSUES

(a) Does the Council have a policy regardingthe eviction of tenants?

Yes 11

No

Don't Know

(b) Could you identify 4 main aspectsof the policy?

(c) How are tenants/thepublic informed of the policy?

What is the role of lawyers in respectof this policy?

383 2.

(a) What steps do you take before taking legal action to evict, and while the legal action is going on?

(b) How do you think the Courtsdecide whether to grantan Eviction Order?

(c) In what circumstancesdo you enforce eviction decrees?

(d) What influencesyour decisionto enforceor not?

384 3.

(a) When would you considercompulsory transfers as opposedto evictions?

(b) What would you needto do to get i) An eviction? ii) A compulsorytransfer?

(c) Would you always expect an Eviction Order to be granted where rent arrears exist?

(d) Would reasonablenesscome into this?

385 (e) What is the role of the Council'slawyers in this process?

4. Have you heard about the changesto the grounds for possessionof securetenancies that were recently introduced?

5.

(a) What performancetargets do you have to meet in relation to eviction actions?

(b) Have you heard of the Accounts Commission/Institute of Housing performance targets?

386 6.

(a) What security of tenure training haveyou had in respectof the following?

Law 1:1

Council Policies 13

Council Procedures 13

Other 0

None 13

(b) What were your views on this training?

7. What are your views on eviction as a remedy

Any othercomments?

387 Tenants'Questionnaire

Do you know what rights securetenants have?

Do you know what's the main Act in Scotlandfor tenants' rights?

3. Have you ever beenon training coursesfor rights issues?

4. Do you know what rights a tenant has to accesshis/her file in the Office?

5. Do you know what rights exist in terms of Right-to-Repair?

6. Do you think the council promotes rights sufficiently in terms of giving tenants information? (Protecting rights.)

What do you know about homelesspersons' rights?

Do you know what tenants' rights are regarding evictions?

388 9. Do you now hat other remediesmight be availableto tenants?

10. Do tenantsever havethe right to withhold rent?

11. Do you find policy documentationinformative about rights?

12. What consultationtook place with tenantsin developing new policies?

13. Are tenantsadvised of Council performance?

14. Do you think housing staff are well informed of tenantsrights?

15. Do you think housing staff receive enoughtraining?

16. What trainingdo tenantsreceive on rights?

389 Appendix 3: CaseStudies

390 a) What would normallybe doneto resolvethis situation?

b) What informationfrom the file canMr Doddssee?

C) What appealrights, if any, doesMr Dodds have should accessbe refused?

(d) What legal implications arise in respectof this situation?

391 Case Studv : Accessto Files

Jamie Dodds has approachedyour council requestingto have accessto his whole tenancy file. Initially the temporary Receptionist tells him that he cannot see his records without filling in an application form. Mr Dodds has now sent in this form and has also written to the local councillor complainingabout the fee requestof L15.

As Housing Officer you check his file and find the following documentation:-

his original applicationform for the tenancy;

A letter from Mr Dodds' GP stating that he suffers periodically from serious clinical depression; this is attachedto a letter provided by Mrs Dodds asking for separatehousing because of his behaviour;

three signed letters of complaint received from neighbours who want action taken because of Mr Dodds' 'bad behaviour' as a result of playing music loudly and 'at all hours of the day and night';

An interview from a staff memberstating that Mr Dodds' house is not merely untidy, but 'really dirty and pretty smelly.... really a bit of a pigsty'.

392 a) How would your Council processthis application? Use relevant legal and good practice guidelinesas part of this assessment.

b) Have you any additional comments?eg What factors might influence your final decision?

393 Case Studv : Homelessness

Mr and Mrs Bingham have approachedthe council for rehousing, clarning that they are now homeless. Mrs Bingham has pointed out in support of her application that she spent most of her life in the Council's areauntil her marriage and the family's subsequentmove to Sussex; it is also pointed out that Mr Bingham cameoriginally from Sussex.

The couple have three children; Colin, Gemmaand Samuel- aged 11,6 and I respectively. Colin and Gemma are Mrs Bingham's children from a previous marriage. At present the family is living apart, Mr Bingham and Colin stayingwith Mrs Bingham's parents,while Mrs Bingham and the other two children are staying with her sister. Both houses are now overcrowded and this is adverselyaffecting Gemma'shealth who suffers from asthma. Mrs Bingham's parents live in the same council area, while Mrs Bingham's sister stays in the neighbouring council area of Glasgow.

The family have now returned to Scotland from Sussexwhere they stayed for five years. living in a securetenancy provided by SussexCouncil. They came back to Scotland a little over five weeks before, giving up their tenancy on the basis of an offer of work in the area that offered tied accommodation. Mrs Bingham has also explained that she has been increasingly feeling homesickand was keen for her husbandto take up the new appointment

The couple have explained(and a point corroborated in writing by a local Church Minister) that the new job has been given up becauseof its unsatisfactory nature and the Minister alleges that constructive dismissal has occurred given both working and living conditions offered.

The Binghams have now been passedto you as Housing Officer to assessand, just before the interview begins, Mrs Bingham explainsthat the Receptionist who carried out the initial interview had advised that 4 apartment houseswere in short supply and that they should possibly try to get their 'old houseback'.

394 a) Whatwould normallYbe doneto resolvethis situation?

b) What legal implications arise in respectof this situation?

395 Case Study : Repairs

Mrs Smith calls at the council office just before noon on Friday 21 May 1999 and complains to the staff memberon reception as follows:-

the leaking roof has still not been repaired despite having been reported already,orally aboutfive weeksbefore and in writing one week before. The Receptionistconfirms the written complaintfrom her records,but statesthat there is no note of her verbal complaint.The Receptionistapologises for the delaywhich shesays is dueto a backlogof this type of repair:

the window broken by vandalson Friday 14 May 1999 has still not been fixed. The Receptionist confirms that she has a note of Mrs Smith's telephone complaint, but advisesthat the council does not carry out such repairs unless the tenant first notifies the incident to the police. In responseto Mrs Smith's retort that 'she didn't know this', the Receptionist explains that the Insurance Companywon't pay for damagewithout a Police Report.

Mrs Smith is now extremely upset and the Receptionist has called the Housing Officer to assist. While she is waiting Mrs Smith hands over a letter previously written by her son. This letter is openedby the Housing Officer who seesthat it is a request for compensation and that the local councillor has alreadybeen contacted'to get repairs done'.

396 a) What would normallYbe doneto resolvethis situation?

b) What sortsof legalremedies might be used?

397 Case Studv : Securitv of Tenure

(a) David Bryce and his partner Sally Meikle have been cohabiting for six months as tenants of your council. They hold a joint securetenancy in a tenementflat and Ms Meikle has recently approachedyou to see if she can get another house becauseof her partner's increasingly volatile and violent behaviour. Her comments would appear to be in line with verbal reports received only last week from neighbours concerninghis drunken and rowdy behaviour.

Complaints were also received from neighbours,shortly after he took up residence about his refusal to take his turn to clean the common stairwell; this was despite letters from warning the council. Just this morning you - as Housing Officer - have received another anonymouscomplaint stating that Mr Bryce now has a dog -a rotweiler - and all the children in the close are ffightened to play in the backcourt where the dog roamsunattended.

The Housing Manager is extremely concerned about matters, particularly as a councillor complaint has been received and three neighbours have registered an application for transfer. One of these applicationscriticises the council for dumping 'undesirables'in their area,particularly those with (according to rumour) a history of mental illness.

398 (b) Brian Joneshas been a securetenant of your council since 1988. He was granted a sole tenancy which was changedto a joint tenancy afler he married. He still lives with his wife and their recently-born twins, Michael and Douglas. About three months ago Mr Joneslost his job and he has now fallen into arrearswith his rent, the total sum currently owed standing at almost 1300. Mr Jones spent his little redundancy money on a holiday for his family as his wife had been feeling 'low' afler the birth of the boys.

To try and ease matters Mrs Jones has taken on a part-time job that involves 12 hours per week. Wages are low, however, and the money soon goes on things for the babies. Mr Jones' situation has now led to him becoming depressedand he has been too tired to deal with the mail. Not to worry his wife, he has destroyedthe two reminders received from the Housing Department and didn't answer the door when the postman shoutedthat there was a RecordedDelivery letter for him. This morning his wife has opened a document from court and has been extremely shocked to find that it is a Summonsto court; that the council is seekingan eviction.

399 1GLASGOW I UNWERSITY LMRARY