York Law School

1. York Law School Getting Away from Doughnuts The 'Discretion' in Discretionary Housing Payments

2. York Law School

3. York Law School Today’s Argument in a nut-shell: 2. That divergent ‘assumptive worlds’ are problematic – three key reasons for this: 1. Problems of Function 2. Problems of Interpretations 3. Problems of Agency • The Problem of the ‘Assumptive Worlds’ in the interpretation of DHPs • DWP + EWCA • Local Authorities

4. York Law School

5. York Law School Pot of money set aside by the DWP (£155 million pot) Dolled out to Local Authorities People Apply for DHPs to help them

6. York Law School The Argument - Part One: The Two ‘Assumptive Worlds’

7. York Law School ‘Assumptive Worlds’ • Ken Young (1981) • A problem of the ‘assumptive worlds’ of those initiating the task, and those carrying it out • ‘Problems of implementation’ as referring to the centre’s failure to understand the values, perceptions, motivations and ‘definitions of the situation’ held by the other body Assumptive Worlds Individual Social Good

8. York Law School Social Right To Housing Benefit (Article 1: Housing Benefit as a possession) The DWP Two Assumptive Worlds Local Authorities Court of Appeal

9. York Law School • Assumptive Worlds • Economic Policy • (Thain, 1987; Dixonand Kouzmin, 2003) • Education • (Marshall, 1985, 1988;Kirst et al, 2006; Humes, 2003; Bennett, 2001; Sacken and Medina, 1997; Finchand Gordon, 1989; Mazzeo, 2002) • Jurisprudence • (Lacey, 1992; Kauffman, 2005) • Health • (Marmor, 2013, Worth, 2001; Porter, 1989; Dopsonand Fitzgerald, 2006) • Social Policy • (Ham, 1980; Murray, 2006; Hill et al, 2009)

10. York Law School The Assumptive World of: DWP + Courts

11. York Law School The Coalition Government Position – Giant Sticking Plaster • ‘Discretionary pot for [local authorities] to tailor to their local and individual needs’ (Steve Webb MP) • ‘the key is in the title’ (Stephen Williams MP) • the best way to incorporate ‘local issues’ on a ‘case by case basis’ • local authorities are ‘best placed’ to make these decisions ‘according to their assessment of local needs and in order to best reflect their particular circumstances’ (Lord Freud)

12. York Law School • R (MA & Others) v Secretary of State for Work and Pensions [2014] EWCA Civ13 ‘Central to [the Secretary of State’s] thinking is the idea that there are certain groups of persons whose needs for assistance with payment of their rent are better dealt with by DHPs than [housing benefit]…I consider that they amount to an objective and reasonable justification of the scheme.’

13. York Law School DHPs provide the ‘greater flexibility’ required to deal with the changing nature of ‘disability-related needs’ (para 74)… 'If read in isolation and without regard to the DHP scheme [the SSSC] plainly discriminates’ (para 39) against the disabled, so it necessary to analyse ‘the scheme as a whole.’ (para 40)

14. York Law School Local Authority Assumptive World

15. York Law School • The other world: Local Authorities • Behavioural and moralistic focus (ties into the responsibilisation agenda: Lister, 2014:12; McKee, 2012:855, Trnka and Trundle, 2014:3,‘DIY project of the self’:Kelly, 2001:29) • Widespread attachment of conditionality (Robinson, 2013; Bowpitt et al, 2013; Jacobs and Manzi, 2013) • Potential influence of local politics (analysis of DWP data points to this) • Huge variation between localities - geographical element to the problem

16. York Law School

17. York Law School ‘The present policy already gives consideration to the incentive and disincentive potential of Discretionary Housing Payment decisions, in particular with regard to recognising and encouraging responsible housing choices. We would also expect to take into account other aspects of a claimant’s behaviour, for instance in their engagement in activities to address worklessness or problematic and antisocial behaviour and in the steps they are taking to address debts and budgeting difficulties.’

18. York Law School

19. York Law School

20. York Law School • An inherently local affair… • Analysis of DWP Discretionary Housing Payment spend data, aligned with ‘predictor factors’: • Level of under-occupation • Number of Cases • Spend on other reforms • (Benefit Cap + LHA reforms) • (https://www.gov.uk/government/publications/use-of-discretionary-housing-payments)

21. Average Level of Deduction (Bedroom Tax)

22. Measure combining level of under-occupation with the number of BT cases

23. York Law School Role of Local Politics Note:*p < 0.05.

24. York Law School Argument Part One: Summary Two very different interpretations of the discretion in DHPs by the DWP and Court of Appeal compared to the Local Authorities

25. York Law School The Argument - Part Two: The Problem of the Assumptive Worlds – Why it is a problem?

26. York Law School Problems of Interpretation

28. York Law School Problems of Function

29. York Law School Policy Delivery by Discretion Policy Delivery by Rules and Exemptions

30. York Law School Problems of Agency

31. York Law School The ‘street-level bureaucrat’ as a scapegoat for policy failure is a familiar figure. (Young, 1981)