New Research Report: Public Administration and Justice in Wales – Social Housing and Homelessness
Dr Sarah Nason and Ann Sherlock (Bangor University), Dr Helen Taylor (Cardiff Metropolitan University), Dr Huw Pritchard (Cardiff University Wales Governance Centre)
Although ‘justice’ (understood as courts, police, prisons, probation etc) is not devolved to Wales, significant aspects of administrative justice are; including much substantive administrative law, initial decision-making, internal/external administrative review, the Public Services Ombudsman for Wales, and the devolved Welsh tribunals. In 2015, before it was disbanded, the Committee for Administrative Justice and Tribunals in Wales (CAJTW) commissioned Bangor University to conduct research with a view to better understand Administrative Justice in Wales and why it matters so much to the people of Wales. Since then a stakeholder community has developed to conduct research and provide advice, including to Welsh Government and the Senedd Cymru/Welsh Parliament, on various issues in administrative justice, including from Comparative Perspectives.
In its recent Report, the Commission on Justice in Wales (‘Justice Commission’) recognised that ‘Administrative justice is the part of the justice system most likely to impact upon the lives of people in Wales’. Our latest research has been funded by the Nuffield Foundation (but the views expressed are those of the authors and not necessarily the Foundation). This research builds on concerns shared by the Justice Commission, and CAJTW, that despite its importance to peoples’ lives, administrative justice in Wales has developed ‘ad hoc’, that this has been exacerbated by the devolution context, and that there is no ‘mapped overview’ of the system. Efforts at mapping areas of administrative justice have been conducted in Scotland and Northern Ireland but our research advances this by focusing in detail on the informal and formal routes of redress in the individual policy areas of housing and education. The Justice Commission stressed that the ‘current system of challenging public bodies in Wales is complex’, in need of better co-ordination and ultimately rationalisation.
Our central conclusion is that, perhaps not surprisingly given the devolution context, public administration in Wales is seen as concerned with delivering services and well-being, and even as a matter of human rights and equality, but rarely as a matter of justice for individuals in their relationships with the state. There are three parts to our research. In our forthcoming Report, Public Administration and a Just Wales, we examine the Welsh policy context of equality, rights and sustainability; administrative justice institutions; legislative reform; redress and system design and oversight. Our first Report examines Public Administration and Justice in Wales in the context of Social Housing and Homelessness; a later Report addresses Primary and Secondary Maintained Education. We stress that the architecture of administrative justice can be best understood from the ground up, by detailed mapping on a subject-matter specific basis, focusing significantly on peoples’ experiences, both people subject to and seeking to challenge administrative decisions, and those who make decisions and operate redress mechanisms.
In our ‘Housing’ research we found that administrative decision-makers in Wales can be under significant pressure and yet expected to understand quite regular changes in ‘soft-law’ including various guidance and new decision-making frameworks (some binding and some not) leading to confusion about the appropriate space for discretionary judgement. Awareness of administrative justice (in its broadest sense of good decision making and effective redress) can be improved, for administrators, but also for elected representatives such as local councillors who regularly act as a first port of call in providing advice and signposting on redress in social housing.
We found examples of collaboration and partnership working, including between local authorities, housing associations, and information and advice providers, leading to more effective and efficient provision of services and a reduction in disputes. However, there is also evident concern that partnership working makes it difficult for individuals to know by whom decisions are being taken, and what are then the appropriate routes to challenge; embedding of advice providers also leads to some concerns about perceived lack of independence.
It was difficult to gain a clear picture of the law applicable to housing associations (Registered Social Landlords) and local authorities respectively. We support exploring a ‘domain based’ approach to regulation, as well as examining whether the implementation of the Renting Homes (Wales) Act 2016, and longer-term codification of Welsh housing law, could catalyse greater harmonisation in both regulatory regimes, and general administrative law, applicable to social housing providers.
We found numerous examples of ‘English’ law being incorrectly applied instead of the relevant Welsh law, and a continuing concern about the complexity of the law applicable to Wales, as well as the complexity of routes to challenge administrative decision-making. We conclude that housing law is a strong candidate for consolidation and eventual codification in light of the Legislation (Wales) Act 2019.
Despite the increasing divergence of Welsh housing law from that of England, the Justice Commission noted that ‘neither the Welsh Government nor the Assembly has, to date, considered trying to consolidate the jurisdiction for housing disputes into one court or tribunal’. Some studies have been conducted ostensibly on an England and Wales basis, but due to timing, scope or objectives, none has been able to fully consider the current situation of housing law and dispute resolution devolved to Wales, or the inter-action between devolved and non-devolved law and redress. This means that some proposals either do not apply to Wales, or their application is problematic. We conclude that Welsh Government should review housing law and dispute resolution specifically as it applies to Wales. Various ‘single housing jurisdiction’ reform initiatives, such as the case for a housing court and the Housing Disputes Service (HDS) recommended by a JUSTICE Working Party, have not explicitly considered the devolution context. To date Welsh housing legislation largely incorporates a carbon copy of previous England and Wales dispute resolution mechanisms. We agree with the Justice Commission’s recommendation that greater use should be made of the devolved Welsh tribunals, noting that engagement with MoJ/HMCTS to develop required county court processes, including online processes, has been one reason delaying implementation of new Welsh housing law (the need for extensive secondary legislation has been another).
We acknowledge that the devolved Welsh approach demonstrates Government understanding that housing is a core element of living a life of dignity, recognising a strong role for the state in providing support for individuals who are unable to access housing via the market. It is also clear that this can be difficult to achieve in light of the reservation of social security. UK Government welfare reforms have likely led to more people in Wales facing proceedings for possession of social housing, and other increased pressures on the administrative justice system. The disproportionately negative impact of legal aid reforms in Wales must also be acknowledged.
The Welsh approach emphasizes prevention, collaboration and partnership working, and restorative practices and restorative justice techniques are promoted. Policy, law and practice around social housing and homelessness seems to stress collective rather than individual justice, and while this has many positive connotations, we nevertheless argue that it may limit the attention given to the ability of individuals to seek redress to ensure that their substantive legal entitlements are respected. Existing administrative justice redress mechanisms (beyond the Ombud) are either rarely used, or there is wide variation in their use across Wales. Administrative reviews are few and far between for the vast majority of local authorities, issued judicial reviews are negligible, and county court appeals under the Housing (Wales) Act 2014 are in the region of a dozen per-annum (though this is anecdotal as no figures are formally recorded).
In our view, improving access to advice, clarifying and consolidating current law, and increasing the availability and strengthening the effectiveness of existing individual routes to redress may well have more impact on just and fair outcomes in social housing, than a policy-framing right to adequate housing or even a duty to have ‘due regard’ to such a right, currently being considered by the Senedd Cymru/Welsh Parliament (though we recommend that all these elements should be simultaneously pursued). Aspirations towards rights, equality and good administration in Wales must be more explicitly recognised as matters of justice, and administrative justice redress mechanisms should be seen as a means to bridge the gap between policy and implementation, ensuring that both policy makers and decision takers are held to account. There is a need for more independent and transparent judicial interpretation and clarification of Welsh housing law. Housing law regularly requires determination of people’s legal rights alongside relationship management. But this need for more formal ‘legal’ justice should not be met at the expense of less formal structures of collective justice; indeed when these structures have developed from the grass roots level they should be encouraged and supported with better mechanisms to identify community issues and to enable people to address concerns together and support lesson learning in a more informal context.