Setting Sail: the Voyage of Disability and Housing By Dianne Theakston (University of Stirling)

Warm greetings from the Critical Urbanist’s housing and disability theme. This thematic group will concentrate upon the key feature of applied theory and practice. This has played a crucial role within the enhancement of disabled peoples’ access to independent living. For instance, in 1990 Michael Oliver’s book “The Politics of Disablement” signalled the gradual emergence of disability studies as a recognised academic discipline in the UK. Oliver highlighted that disabled peoples’ full participation within society was hindered by environmental, financial, political, communicational and attitudinal barriers.

It also set out the social model of disability which was first enshrined by the Union of Physically Impaired against Segregation’s (UPIAS) corner stone (1976) document “Founding principles of the social model of disability”. Thus, disablement was shifted away from an individual’s impairment to the impact of inaccessible/discriminatory external factors. This continual academic and user-lead practice pressure has achieved UK policy change. Examples include the Disability Discrimination Act (1995) and the Community Care (Direct Payments) Act (1996).

As disabled people are one of the most vulnerable groups within societies (WHO, 2011), the role of housing within welfare provides many contentious debates since it can be viewed as a commodity or a public resource. Societal values around disability can be tangibly reflected by what type of housing is built, for whom, where, under what type of finance, and with accessible services or amenities. As disability studies scholars Swaine et al (2004) noted, disabled peoples’ access to independent living requires a holistic perspective across all areas of life. Similarly, this blog will encourage a holistic approach towards housing and disability with attention to knowledge transfer, learning and critical analysis that can be gained from interdisciplinary working.

Imrie (2003), for instance, brought attention to the lack of existing accessible properties as well as the lack of user-involvement throughout the planning process; whilst Pullin’s (2009) “Design meets disability” evoked questions surrounding inclusive design, can we meet the needs of all? Public spaces have also been designed without consideration of access for all (Bull 1998) and today, accessible housing or adaptations are often portrayed as special needs beyond mainstream practices (MacFarlane and Laurie, 1996).

Roulstone and Bish-Mason (2012) point out that there exists a hierarchy of minority group needs. Disability tends to occupy as the lowest priority group. Therefore, this blog aims to develop the endeavours to raise the profile of disability. This has been one of the reasons for setting up the new Working Group for Disability and Housing within the European Network for Housing Research. Seminars, joint publications and research projects are some elements future blog contributors are encouraged to participate in, share and inspire. A call will open on the 1st of January for submissions for papers to our first Working Group event at the 2015 ENHR conference to be held in Lisbon, Portugal.

Looking forward, the disability stream of this Critical Urbanist’s blog aims to provide a platform for individuals from academia, as well as policy and practice to submit contributions which critically assess any aspect of disability and housing. As well as addressing some or all of the themes mentioned above, this blog encourages out-of-the-box contemplation and peer inspiration to provide a critical yet supportive environment for debate. Together, let’s raise the profile of disability within housing studies at local, national and international levels.

Dianne Theakston, PhD researcher, University of Stirling

Citations and links:

Imrie, R., (2003), Housing Quality and the Provision of Accessible Homes, Housing Studies, Vol. 18, (3), 387-408.

MacFarlane, A. and Laurie, L. (1996) Demolishing special needs: principles of non-discriminatory housing. Derby: The British Council of Disabled People.

Oliver M. (1990) The Politics of Disablement. Basingstoke: MacMillan.

Pullin G. (2009) Design meets disability, (Cambridge: The M, I, T Press).

Roulstone, A and Bish-Mason, H (eds) (2012) Disability Hate Crime and Violence11, Routledge).

Swaine J., French S., Barnes C. and Thomas C. (2004) Disabling barriers enabling environments. London: Sage Publications.

UPIAS (1976). Founding principles of the social model of disability. London: Union of Physically Impaired Against Segregation.

World Health Organisation (2011) World Health Report 2011. Available: http://www.who.int/disabilities/world_report/2011/en/index.html [Retrieved 13 June 2012].

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Housing Law and the Welfare State – the role of ‘law’ in governing state-citizen relations

The Downward Drag of Pereira: Ongoing disputes with Vulnerability By Jed Meers, University of York

In 2012, Nicola Sturgeon heralded the scrapping of ‘priority need’ assessments for homeless households in Scotland.[1] She described the change – which effectively results in anybody unintentionally homeless being owed the full housing duty – as ‘the most progressive homelessness legislation in Europe.’ In the aftermath of the Scottish Referendum, a great deal has been written about policy divergences north and south of the border. Sadly, for those of us in England, recent cases before the High Court and Court of Appeal bring into sharp relief how brutal our treatment of the homeless can be in comparison.

In England and Wales, one of the hurdles homeless applicants still need to navigate to be owed the full housing duty is the ‘priority need’ requirement. They can do so by demonstrating they fall into one of the categories outlined in s.189 Housing Act 1996 – a standard poor law inspired barometer of pregnant women, those with children, or people in old age – with a separate catch-all category of being ‘vulnerable’ for some ‘other special reason.’ There has been a gradual decline in the numbers accepted under this category; a trend demonstrated in figure one.[2]

 

Untitled

It is this construction of ‘vulnerable’ which can generate a downward drag on those accepted as being in priority need. The term is not defined anywhere in the legislation itself, which has, unsurprisingly, led to a smorgasbord of legal appeals grappling with the concept and attempts by the Courts to define and refine the term on multiple occasions. The current position – stemming from Bowers [3] and given added gloss by Pereira [4] – is whether the applicant ‘when homeless, [would be] less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects.’[5]

There are two key issues to note in its interpretation. Firstly, following Johnson,[6] the test concerns an ‘ordinary homeless person’ who is already homeless – not somebody who is non-homeless who then becomes homeless. Secondly, with particular significance to recent appeals, the ‘ordinary homeless person’ is a ‘necessarily imprecise’[7] hypothetical construction which is largely left to the imagination of the local authority. It is assumed that ‘a busy local housing authority will have a vast experience of the range of homeless persons,’[8] and as such, they are best placed to create the appropriate comparator.

The problems this test can cause have been ably demonstrated in some recent case law. The judgment in Hotak[9] serves as an example of the Catch-22 situation which can present itself when Local Authorities stretch the Pereira test outwards. Here, the appellant had learning difficulties, a history of self-harm, depression and post-traumatic stress disorder. He relied on his brother for daily support, including ensuring his personal hygiene, changing clothes, cooking meals and handling his finances.[10] The Local Authority decided that he was not more vulnerable than the ‘ordinary homeless person,’ as he had the support of his brother – something homeless persons rarely enjoy.

Their decision was upheld by the Court of Appeal, who saw support from others as being part of the ‘intensely fact sensitive and practical’[11] process of assessing vulnerability. The judgment was applied more recently in Kanu,[12] where the applicant suffered from Hepatitis B and haemorrhoids, and family support resulted in them falling foul of the Pereira test. However, could the facts of Mr Hotak’s case not be taken both ways? If he did not receive support, could it be argued that he is living independently and therefore is no less vulnerable than an ‘ordinary homeless person’?

This downward drag effect is particularly clear when Local Authorities draw on questionable evidence to support their construction of this ‘ordinary homeless person’ comparator. A good example was provided earlier this month by the Court of Appeal in Ajilore,[13] where the applicant suffered from hepatitis B, had a history of class-A drug use, and was suicidal. The Local Authority officer found that he was not in priority need, in part due to his assertion that ‘it was not unusual for street homeless people to have thoughts of self-harm and suicide,’[14] an assertion supported by a ‘report published in the British Medical Journal in 2005 [which] confirmed that homeless people do have higher self-harm incidents than the ordinary population.’ In short, a lot of homeless persons want to kill themselves, so that does not render an applicant any different from an ‘ordinary homeless person.’

However, the Court found that this ‘report’ was not a published piece of research at all. In fact, it was a letter sent to the Journal by a General Practitioner, which detailed the result of a survey of 116 of their patients. In this small sample, 7.2% had an episode of self-harm or suicide attempts. This did not prevent the Court upholding his decision, deciding instead that ‘the statistics were used by the reviewing officer in order to back up the conclusions that he had drawn from his own knowledge of an ordinary street homeless’ person.[15] Effectively, the statistics were for the purposes of illustration, instead of providing evidence per se.

The same approach has been used recently to justify denying a housing duty to those who have used drugs. In Johnson v Solihull,[16] the applicant was a recovering heroin addict who had been in-and-out of prison since the age of 16. The Local Authority did not consider him ‘vulnerable’ in line with s.189, citing in their decision letter a study by Homeless Link finding that 92% of homelessness services work with people who use drugs. The logic goes that a lot of homeless people are recovering drug users, or are still using, so that does not render an applicant any different from an ‘ordinary homeless person.’

The picture as it stands appears to be at odds with the purpose behind both the Pereira Test and s.189 Housing Act 1996. The principle is to ensure that those who are more vulnerable receive assistance, but the formation of a comparator which is already very vulnerable – and supported by what can often be shaky evidence – pushes the test downwards and denies the housing duty in questionable cases. Hotak is on appeal and will be heard at the Supreme Court on 10th December, which will be the first time the highest court has considered this issue. Hopefully they will take the opportunity to re-assess the test as it currently stands, and halt its downward drag.

Jed Meers, University of York  (@jed_meers)

 

References

[1] See Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012

[2] Data taken from the Department of Communities and Local Government

[3] R v Waveney DC Ex p. Bowers [1983] Q.B. 238

[4] R. v Camden LBC Ex p. Pereira (1999) 31 H.L.R. 317

[5] Pereira [329] per LJ Hobhouse

[6] Johnson v Sollihul [2013] EWCA Civ 752

[7] Ibid [18] per LJ Arden

[8] Tetteh v Kingston upon Thames Royal LBC [2004] EWCA Civ 1775 [21] per LJ Gage

[9] Hotak v Southwark LBC [2013] EWCA Civ 515

[10] Hotak [4] per LJ Pitchford

[11] Ibid [39] per LJ Pitchford

[12] Kanu v Southwark LBC [2014] EWCA Civ 1085

[13] Ajilore v Hackney LBC [2014] EWCA Civ 1273

[14] Ajilore [22] per LJ Gloster

[15] Ajilore [39] per LJ Gloster

[16] Johnson v Solihull [2013]

 

 

Using the Social Security System to Deliver Housing Policy By Louise Cheung, University of Southampton

The interaction between housing policy and social security law has been my primary research interest for the last few years. My PhD research has looked at several overarching themes to unpick this topic, including; government measures to prevent repossession, the ideology of homeownership, and the state versus individual responsibility for housing costs. The political basis behind the ideology of homeownership which takes into account financial investment considerations in conjunction with the x -factor benefits of home is of particular interest, and it has been my aim to marry this together with the state’s approach towards social security law and policy. The idea of home in law has been an ever increasing popular research area in property law. To gain an understanding of the nebulous idea of home; I would refer to the excellent account of the conceptualisation of home in law by Fox O’Mahony as primary reference material.

In the UK, it is fair to say that we are a nation of homeowners and this is a product of a string of governmental policies throughout the 20th and 21st century. I have found particularly interesting the contrast from the UK and continental European countries where renting is the main tenure, and the reasons why. For an insightful perspective on this, I would refer to a superb article by Matthew Phillips about why most Germans rent. In particular, the development of social housing and its relative decline since the 1980s is a pet interest of mine when contemplating the notion of tenure. There are many fascinating accounts of the history of social housing, including, Cole and Furbey’s ‘The Eclipse of Council Housing’.

The key means-tested social security welfare benefits that I discuss in my research are Housing Benefit for renters, and Support for Mortgage Interest for mortgaged homeowners. The increasingly residualised nature of the government safety net housing costs is a key aspect of my thesis’ discussion of these welfare benefits for housing costs. With the upcoming Universal Credit reforms, these benefits will be shelved, but the theory driving the use of tax payers’ money for the use of these welfare benefits for housing in both tenures remains relevant. The eligibility criteria, the method of delivery and the use of bright line rules all give details about the policy direction which drives the regulation governing these social security benefits. Statistics about the number of welfare benefit recipients, analysis of the mention of housing in key political manifestos throughout the 20th century, and budget records are all primary material which are analysed to give this research further depth to the exploration of material, to come to functional and evidenced conclusions.

A great difficulty in my research has been pinpointing the exact nature of housing policy, and the key objectives which run through it. Through researching the history of housing policy, it seems to me that there are two common threads which guide housing policy in amongst some incoherent policy; (1) provide support for rented accommodation for low-income households (mostly as a safety net) (2) to promote homeownership to enhance individual responsibility for housing costs. It is these two guiding objectives which tie together the various discussions relevant to my research, alongside the key theoretical underpinning of my thesis, which is measuring the relative shifting of state towards individual responsibility for housing costs, be that in the rented or owner-occupier sector.

It seems to me that property law lends itself to discussion of policy. Property law is about governing relationships between land/structures and people, and policy drives relationships that people have with the land/structures, and the impact people have on land/structures. If you would like to read more about contemporary legal research in property, please visit our blog, where discussion pieces about property law’s relationship with sustainability, policy and social justice can be found. The blog was created through the gathering of early career academics at the postgraduate stream of the most recent Modern Studies in Property Law Conference in Liverpool. The property collective editors welcome blog posts from those interested in property research and its connection to sustainability, policy and social justice.

 

Louise Cheung (@MsLouiseCheung)

PhD Candidate, University of Southampton, Law School, Faculty of Business and Law

Property Graduate Trainee, Hertfordshire County Council

 

What’s Not to Like? Misplaced Faith, Ideological Partisanship and the Inflexibility of the Universal Credit Scheme By Tony Manzi, University of Westminster

Having signally failed to capture the public imagination with the idea of the Big Society, the UK Coalition Government has turned its attention to transforming the welfare state through the introduction of the Welfare Reform Act 2012, a key element of which was the introduction of Universal Credit. The justification for this benefit was (in theory) to provide a rational attempt to address the complexity of the welfare system by introducing one easily understandable, comprehensive payment. However, as with all attempts at welfare reform, the devil is in the detail. In this case the detail is proving to be far more problematic than government advisors anticipated (although this could easily have been predicted by anyone with a passing knowledge of the UK benefits system).

The purpose of Universal Credit was to combine six benefits (Income Support, Jobseeker’s Allowance, Working Tax Credit, Child Credit, Employment and Support Allowance and Housing Benefit) into one. This would enable an admittedly vastly complex system to be (at a stroke) simplified and unified through the integration of a single, comprehensive payment. The attractions of such a system were obvious. It would be (in theory) uncontroversial, easy to understand and simple to explain. Provision of a single, integrated personal subsidy would facilitate a more streamlined and transparent welfare service. Launched in 2013, the initiative was a particular passion of the Secretary of State for Work and Pensions (Ian Duncan Smith) who, in preparation for its introduction, undertook extensive study of conditions in a number of deprived areas across the UK. His commitment to the initiative has led Duncan Smith to claim that the project remains ‘on track’ and ‘within budget’ despite repeated delays and virulent criticism from MPs. Full implementation is not expected until 2017 but it is highly unlikely that this timetable will be met. Initial estimates of administration costs of £2.2bn have subsequently been revised (one estimate is that full implementation will cost in the region of £12bn).

Why has government placed such faith in a system that (well before its full introduction) appears severely flawed? A number of explanations can be given (many of which are identified in a 2014 study (King and Crewe – The Blunders of our Governments – Oneworld publications) of earlier policy failures. Firstly, such initiatives rely upon precise technology, promising fast, powerful and efficient communications, resistant to human error. Ministers have been long been attracted to solutions based on IT systems, despite (or because of) their lack of detailed understanding. A further attraction is that their administration can be easily outsourced. However, recent history has shown that assumptions about the efficiency and effectiveness of IT systems are (at the least) highly problematic.

Related to this problem are the ideological assumptions that the private sector is almost always more effective than the public and that welfare provision inevitably leads to dependency. It is not difficult to understand why a benefit system that can be easily comprehended (and just as easily withdrawn) would be so attractive to Ministers. Moreover, the welfare system is particularly vulnerable to the presentation of anecdote as accepted fact and a refusal to consider evidence that undermines core beliefs. Popular assumptions are rarely questioned – the oft-quoted statement of intergenerational worklessness is one example of this partisanship, despite a complete lack of supporting evidence. The process of ‘path dependency’ provides a further explanation for continued faith in the Universal Credit scheme. Considerable time, energy and resources have been exerted in formulating the proposals and failure is therefore inconceivable.

Difficulties in implementation of Universal Credit (even in a small number of ‘pathfinder’ authorities) indicate that these problems will inevitably be intensified when the scheme is ‘rolled out’ across the country. Moreover, forecasts by the Institute of Fiscal Studies and Joseph Rowntree Foundation show that any financial advantages of the scheme are likely to be offset by other tax and benefit changes to produce increases in relative and absolute poverty. There is good reason for the complexity of the contemporary benefits system as it has to deal with the multifaceted circumstances of large numbers of individuals with highly diverse needs. A system that demands simplification, is over-reliant on technological faith, motivated by intellectual prejudice and inflexible in its design, seems almost certainly doomed to failure. However, as we have grown accustomed to witnessing, those responsible will avoid blame and households in the greatest need will suffer the most severe consequences.

Tony Manzi, University of Westminster