A Medical Lens and a Moral Filter: Social Landlords and their Control of Antisocial Behaviour Perpetrated by Occupants with Mental Impairments __________________________________ Volume One of two volumes Leigh Estell Roberts Doctor of Philosophy University of York Law July 2018 Abstract This thesis explores social landlords’ management of antisocial behaviour (ASB) perpetrated by people with known or suspected mental impairments. That landlords do not always have knowledge of individual perpetrators’ impairments is a fundamental premise of this thesis. It argues that social landlords nevertheless sit at a crossroads of policy agendas, having responsibility to house people with such impairments and control ASB. This policy conflict is exacerbated by the broad definition of ASB and the availability of disability-related challenges to ASB proceedings. There is a gap in the literature empirically examining disability-related challenges to social landlords’ use of ASB proceedings. Thus, this thesis seeks to address that gap by exploring housing officers’ decision-making in the control of ASB at this juncture of policy. In examining these issues, it asks whether policy and housing management practice approximate to a social or medical model of disability and what influence housing officers’ understandings of risk and housing professionalism have on decision-making. Examining understandings of risk, ASB and disability justified a social constructionist approach. Qualitative methods were used with four housing associations in which their policies were analysed followed by interviews with managers and vignette-led focus groups; case files were analysed followed by interviews with officers. The data was thematically analysed. The findings are examined to reveal that officers’ use of interventions in ASB control is affected by professional issues and risk. They are also informed by both medical and moral understandings of perpetrators and disability resulting in differential outcomes. The importance of the study relates to constructions of disability and their consequences: officers’ minimal compliance with equality law or extraordinary treatment may correspondingly result in social exclusion or inclusion. The recommendations for policy are reform of equalities legislation, better support for individual perpetrators and measures to improve relations between social landlords and medico-welfare agencies. Page 2 of 233 Contents VOLUME 1 Page Lists of Tables, Figures and Illustrations 10 Cases 11 Legislation 14 Glossary of Abbreviations and Terminology 16 Acknowledgments 17 Declaration 18 Introduction and Overview 20 What are the Aims of the Thesis? 23 Why is there a Need for this Thesis? 25 How will the Research Questions be answered? 27 The Models of Disability 31 The Concept of Risk in this Thesis 41 Structure of the Thesis 43 CHAPTER 1 Social Housing, Antisocial Behaviour, Responsibility and Risk 48 Introduction 49 1.1 Social Housing: a History of Decline 51 1.1.1 Social Housing: an Overview of the Tenure and Access to it 51 1.1.2 Residualisation ASB and the Discourse of Risk 56 1.2 ASB Controls: Conditionality, Responsibilisation and Identity 61 1.2.1 Responsibilisation and the Governance of ASB 61 1.2.2 The Broad and Common-sense Definition of ASB 63 Page 3 of 233 1.2.3 Interventions Used in ASB Control 67 1.2.4 Housing Officers and Governance: the Effects of an Uncertain Professional Identity 76 1.2.5 Occupants and Self-Regulation 80 1.3 Risk 84 1.3.1 The Social Construction of Risk in ASB 84 1.3.2 Risk and Accountability 87 1.3.3 Risk, Knowledge and Governance 91 Conclusion 94 CHAPTER 2 Defences and Challenges to Antisocial Behaviour Proceedings 98 Introduction 100 2.1 The Housing Law Defences 102 2.1.1 Reasonableness 102 2.1.2 Structured Discretion 103 2.2 Challenges at Public Law 104 2.2.1 Policies and their relationship with Public Law Defences 104 2.2.2 The Meaning of Proportionality in Public Law 105 2.3 Challenges relating to Disability and Discrimination and their Limitations 106 2.3.1 The Drafting of Legislation and the Models of Disability 107 2.3.2 Discrimination Arguments: The DDA 1995 and its Early Social Model Success: North Devon Homes Ltd v Brazier1 108 1 North Devon Homes Ltd v Brazier [2003] EWHC 574 (QB), [2003] HLR 905 Page 4 of 233 2.3.3 Discrimination Arguments: the Limitations Posed by Risk Considerations 110 2.3.4 Discrimination Arguments: the Limitations Posed by Comparators 115 2.3.5 Litigation Risk: Challenges and Proportionality 118 2.3.6 Discrimination Arguments: the Limitations Posed by Causation 124 2.3.7 Other Disability Related Challenges and Remedies 127 Conclusion 135 CHAPTER 3 Evidence and the Social Construction of Disability in the Context of ASB 138 Introduction 139 3.1 Identity as a Problem of the Social Model 141 3.1.1 Problems with Evidence of Disability: Occupants’ Problems with Identity and Landlords’ Problems with Knowledge 141 3.1.2 The Construction of Perpetrators’ Impairments by Housing Officers and Other Professionals 144 3.2 Discrimination and Evidence 149 3.2.1 Evidence, the Law and how it is Weighed by Professionals 149 3.3 Evidence and the Evidential Gap 155 3.3.1 Evidence in the Absence of Disclosure: A Needle in a Haystack 155 3.3.2 Knowledge and a Duty to Investigate? 157 Page 5 of 233 3.4 Disability as a Moral Issue 160 3.4.1 The Social Construction of Mental Impairment and Agency: Pop Psychology and Folk Psychiatry 160 3.4.2 Mental Impairment and Agency 163 3.4.3 Guilt and Responsibility: Morality in Judicial Discourse 166 Conclusion 175 CHAPTER 4 Methodology 177 Introduction 178 4.1 Epistemology 179 4.1.1 Research Aims, Questions and Hypotheses 180 4.2 Research Methods and Design Appropriateness 183 4.2.1 Research Stages 184 4.3 Trustworthiness (Dependability and Reliability) of Data 187 4.3.1 Sampling and Recruitment of Organisations 188 4.4 Ethics: Informed Consent and Confidentiality 196 4.4.1 Data Protection 196 4.4.2 Negotiating and Maintaining Access 197 4.5 Instrumentation 201 4.5.1 Piloting 201 4.5.2 Case File Analysis 202 4.5.3 Interviews 204 4.5.4 Focus Groups 209 4.6 Reflexivity 218 4.7 Data Analysis 221 Conclusion 233 Page 6 of 233 VOLUME 2 Page CHAPTER 5 The Medical Lens and the Moral Filter Introduction 4 5.1 Reflective Case-management Across the Four Organisations 7 5.2 Housing Officers: Constructions of Professional Roles and Case-management 9 5.3 The Medical Lens”: Evidence and the Evidential Gap 13 5.3.1 Observation as a Method of Gathering Evidence 16 5.3.2 Inquiry as a Method of Gathering Evidence 18 5.3.3 “Common-sense”, Professional Intuition and Evidence 24 5.3.4 The Influence of Training on the Medical Lens 27 5.3.5 Folk Psychiatry as a Method of Gathering and Weighing Evidence 28 5.4 The Moral Filter 35 5.4.1 The Mental Element of the Moral Filter: Capacity, Intention and Malice 36 5.4.2 Respectability and the Moral Filter 44 5.4.3 Personal Responsibility: the Influence of Welfare Conditionality on the Moral Filter 48 5.4.4 Substance Misuse, Identity and Responsibility in the Moral Filter 51 5.4.5 Manipulation of “the System”: the Influence of Scepticism, Suspicion, and Cynicism in the Moral Filter 57 Conclusion 70 Page 7 of 233 CHAPTER 6 An Eye on the Endgame 74 Introduction 76 6.1 How Officers Construct the Risks of ASB 79 6.1.1 Risk Assessment 79 6.1.2 Risks to the Stock: Hoarding and condition of Property Cases 87 6.1.3 Risks to Officers: Personal Safety 89 6.2 The Impact of Case-Management on the Construction of Risk and Difficulties in Reaching Outcomes: Clashes of Lifestyles 90 6.2.1 Difficulties in Determining Evidence between the Parties 92 6.2.2 Constructing the Behaviour Complained of as Trivial 94 6.2.3 The Risks of Inaction 96 6.3 The Impact of Case-Management on the Construction of Risk and Difficulties in Reaching Outcomes: the Use of Various Adjustments 97 6.3.1 Allocation as an Adjustment 98 6.3.2 Adjustments – Physical Adaptations and Auxiliary Aids 100 6.3.3 Supportive Interventions as Adjustments – 101 6.4 The Risks of Outcomes and their Effect on Case-management 115 6.4.1 Risks to Perpetrators, Tensions with Other Agencies 116 6.4.2 Risks to Landlords: Not Achieving the Desired Outcome 120 Page 8 of 233 Conclusion 137 Conclusion 139 Setting the Scene: Residualisation, Responsibility ASB 140 Which model of disability best explains how relevant perpetrators are constructed in policy and social landlords’ ASB management practice? 141 How are housing officers affected by their professional role and their understanding of it and how does that affect their decision-making? 142 The Medical Lens and the Moral Filter 143 How do officers understand risk and how does this affect their decision-making? 145 What are the outcomes of social landlords’ ASB management practice and can they be explained by the models of disability, housing professionalism and risk or how officers construct these matters? 146 So what? Where do we go from here? 149 References 153 Appendices 169 Page 9 of 233 Lists of Tables, Figures and Illustrations VOLUME 1 Lists of Tables Page Table 1.1 Published research linking disability with ASB 74 Table 4.1 Summary of Issues and hypotheses raised in the preceding chapters 181 Table 4.2 Factors Indicating Assessment of Perpetrators (“FIAPs” or “Factors”) 224 Table 4.3 Six-Stage Approach to Case-management 226 Table 4.4 Typology of ASB and Risk 227 Table 4.5 Initial grouping of Factors Indicating Assessment of Perpetrators 229 Lists of Figures Figure 4.1 Empirical Study – Background & Methodology 193 Figure 1.1 Trends