Heriot-Watt University Research Gateway The ‘ideal’ homelessness law Citation for published version: Fitzpatrick, S & Davies, L 2021, 'The ‘ideal’ homelessness law: balancing ‘rights centred’ and ‘professional- centred’ social policy', Journal of Social Welfare and Family Law, vol. 43, no. 2, pp. 175-197. https://doi.org/10.1080/09649069.2021.1917712 Digital Object Identifier (DOI): 10.1080/09649069.2021.1917712 Link: Link to publication record in Heriot-Watt Research Portal Document Version: Publisher's PDF, also known as Version of record Published In: Journal of Social Welfare and Family Law Publisher Rights Statement: © 2021 The Author(s). General rights Copyright for the publications made accessible via Heriot-Watt Research Portal is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy Heriot-Watt University has made every reasonable effort to ensure that the content in Heriot-Watt Research Portal complies with UK legislation. If you believe that the public display of this file breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 27. Sep. 2021 Journal of Social Welfare and Family Law ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/rjsf20 The ‘ideal’ homelessness law: balancing ‘rights centred’ and ‘professional-centred’ social policy Suzanne Fitzpatrick & Liz Davies To cite this article: Suzanne Fitzpatrick & Liz Davies (2021) The ‘ideal’ homelessness law: balancing ‘rights centred’ and ‘professional-centred’ social policy, Journal of Social Welfare and Family Law, 43:2, 175-197, DOI: 10.1080/09649069.2021.1917712 To link to this article: https://doi.org/10.1080/09649069.2021.1917712 © 2021 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group. Published online: 27 Apr 2021. Submit your article to this journal Article views: 941 View related articles View Crossmark data Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=rjsf20 JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 2021, VOL. 43, NO. 2, 175–197 https://doi.org/10.1080/09649069.2021.1917712 The ‘ideal’ homelessness law: balancing ‘rights centred’ and ‘professional-centred’ social policy Suzanne Fitzpatricka and Liz Daviesb aProfessor of Housing and Social Policy, Heriot-Watt University, Edinburgh, Scotland; bBarrister, Garden Court Chambers, London, UK ABSTRACT KEYWORDS This paper sets out proposals for the ‘ideal’ legal framework to Homelessness; housing; address homelessness in Great Britain (GB), with potential lessons rights; social policy; for other countries seeking to pursue rights-based approaches in discretion; devolution; this field. Exploiting the ‘natural experiment’ conditions generated welfare by post-devolution divergence in key aspects of homelessness law, the paper draws on legal and social scientific learning from England, Scotland and Wales, as well as internationally, to formulate proposals for the optimal rights-based model. We argue that an ideal statutory homelessness system, situated in a less than ideal welfare and housing context, requires a balance to be struck between a robust set of individually-enforceable entitlements, on the one hand, and scope for pro-active, flexible approaches on the part of housing practitioners, on the other. The ten core principles we advance would therefore aim to combine the best of ‘profes­ sional-centred’ and ‘rights-centred’ social policy approaches. Introduction In this paper we set out to propose the ‘ideal’ legal framework to address homelessness in Great Britain (GB), drawing on learning from across all three GB jurisdictions (England, Scotland and Wales),1 as well as internationally, and attempt to encapsulate insights from both legal and social science scholarship. The ‘natural experiment’ conditions generated by post-devolution divergence in the statutory homelessness framework, first established by the Housing (Homeless Persons) Act 1977, provides fertile territory for exploring what ‘ideal’ legal arrangements might look like in this field. Most notably, the ‘priority need’ criterion, which continues to limit access to accommodation for single homeless people in England and Wales, was fully abolished in Scotland by the end of December 2012.2 New prevention-orientated home­ lessness legislation has now been implemented in both Wales (April 2015) and in England (April 2018), while a window has opened up to consider further legislative changes in Scotland following on from the recommendations of an Action Group established by the First Minister in October 2017 (Scottish Government 2018). We begin our account by setting out the current context for homelessness in GB, as an understanding of the nature of the ‘social evil’ the legislation seeks to address is CONTACT Suzanne Fitzpatrick [email protected] © 2021 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group. This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any med­ ium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way. 176 S. FITZPATRICK AND L. DAVIES a necessary first step in constructing the optimal statutory system. Before describing the fundamentals of the 1977 legislative framework and evaluating its subsequent evolution in each GB jurisdiction, we ask ourselves the prior question: why do we think that the provision of enforceable individual rights might be a helpful means of addressing the issues homeless people face? Thereafter, we advance a series of principles that our analysis indicates should underpin the ideal homelessness law, melding the best from the current arrangements in England, Scotland and Wales, and indicating some new features too. Our central contention is that an ideal statutory homelessness system requires a balance to be struck between a robust set of individually enforceable entitlements on the one hand, and scope for pro-active, problem-solving, flexible approaches on the part of housing practitioners, on the other. This need for balance, and to some extent trade- offs, between (strict) rules and (professional) discretion (Goodin 1986), informs the principles we present and defend in this paper. The analysis underpinning this paper was undertaken as part of a commission by Crisis, the national homelessness charity, to contribute to their ‘Plan to End Homelessness’, developed to mark their 50th anniversary year (Downie et al. 2018). It was thus intended to scope out the optimal role that the law could play in delivering a wider vision to eliminate homelessness as a major social problem in GB. Our brief was to be ambitious, even idealistic, but not utopian, and we hope to have trod that delicate path successfully in constructing a proposed legal framework that we believe to be optimal within the resource and other structural constraints that are likely to persist for the foreseeable future. This work was completed before the COVID-19 catastrophe impacted on the UK and the rest of the globe. In the UK, an extraordinary public-health orientated effort appears to have been successful in holding down infection rates to very low levels amongst homeless people (Fitzpatrick et al. 2020c). However, there are fears that the (under­ standable) emphasis given to immediate crisis response during the pandemic has under­ mined wider efforts to prevent and end homelessness, just when such efforts are most needed, given a likely post-pandemic ‘spike’ in homelessness levels as the impacts of the economic lockdown unfold. The massive disruption occasioned by the COVID-19 crisis also provides a window to reflect on the shape of homelessness services in the future. We hope that this paper can provide a constructive contribution to that debate. Homelessness in GB Contrary to what is often claimed by politicians,3 the ‘causes’ of homelessness are actually pretty clear in GB: The most important driver of homelessness in all its forms is poverty . Other drivers include availability and affordability of accommodation, the extent to which prevention measures are used, and the demographics of people experiencing homelessness. (Bramley 2017, p. 1) While a range of health and support needs significantly contribute to homelessness risks, their explanatory power is much less than that of poverty, especially poverty experienced in childhood (Bramley and Fitzpatrick 2018). Likewise, while family networks provide JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 177 a protective ‘buffer’ for many, the statistical relationship between these social support factors and homelessness is weaker than that with material poverty. The odds of experiencing homelessness are higher for poorer people living in pressured housing market areas. There is a wealth of evidence that young people who have been in care as a child, and adults leaving institutional care, particularly prison, face massively dispro­ portionate risks of homelessness (All-Party Parliamentary Group for Ending Homelessness 2017). In England, growing housing market pressures meant that the numbers of households accepted by local