Reconceptualising Homelessness Legislation in England

Published date01 September 2021
AuthorChris Bevan
Date01 September 2021
DOIhttp://doi.org/10.1111/1468-2230.12634
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Modern Law Review
DOI:10.1111/1468-2230.12634
THE
MODERN LAW REVIEW
Volume 84 September 2021 No. 5
Reconceptualising Homelessness Legislation in England
Chris Bevan
This article has two central aims. First,it problematises the long-held consensus that homeless-
ness legislation in England operates according to the concept of need and,secondly,it advances an
alternative reading and reconceptualisation of homelessness legislation according to the notion
of risk.Through examination ofthe two major sources of current homelessness law, the Housing
Act 1996 and the recently enacted Homelessness Reduction Act 2017, this article locates and
explores how risk is operationalised, the precise conceptions of r isk engaged and the implica-
tions and potentiality of this risk reconceptualisation. In so doing,it is argued that r isk exhibits
a stronger explanatory power of the current homelessness legislation than need and presents
opportunities for how we understand local authority decision-making and the shape of future
reform.
INTRODUCTION
‘Society has come to understand itself and its problems in terms of the principles
of the technologies of risk.’1
There is a pervasive and long-standing consensus in government, amongst
politicians and policy makers that housing in England2is allocated to the
homeless according to an ideology of need; in other words, that those most ‘in
need’ of housing are those who receive it. Yet,as Cowan et al have observed,this
widely acknowledged rationale of need,whilst almost universally promulgated,3
is conceptually empty and has largely gone unchallenged.4This article takes
Associate Professor in Property Law, Durham Law School, Durham University. The author would
like to thank the anonymous reviewers for their constr uctive comments which have resulted in an
improved work.
1 F. Ewald, ‘Norms, Discipline, and the Law’ 30 Law and the Order of Culture 138, 147.
2 Homelessness is a devolved issue in the UK.This ar ticle is limited to coverage of the issue of
need and risk as they operate in homelessness legislation in England.
3 Chiey in political and academic circles, see D. Cowan, R. Gilroy and C. Pantazis, ‘Risking
Housing Need’ (1999) 26 Journal of Law & Society 403. As to the need consensus across political
divides, see M. Carter and N. Ginsburg, ‘New government housing policies’ (1994) 41 Critical
Social Policy 100; I. Loveland,‘Cathy sod o! The end of the homelessness legislation’ (1994) 16
Journal of Social Welfare and Family Law 367.
4 There are two principal exceptions to this: Cowan et al have called for rethinking of housing
law according to a concept of risk,ibid. Fitzpatr ick and Stephens have, separately,sought to apply
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited. (2021) 84(5) MLR 953–973
Reconceptualising Homelessness Legislation in England
up that task in critiquing and challenging the status of need as the central
ordering principle in homeless provision and advances a reconceptualisation,
a re-reading of homelessness legislation according to the ordering theme of
risk. It does so,not through an examination of housing policy, but through an
exposition of the two major pieces of legislation governing homelessness law in
England today: the Housing Act 1996 and the recently enacted Homelessness
Reduction Act2017. The article proceeds in four par ts. A r st par t briey
problematises the concept of housing need and, in so doing, exposes the con-
cept of need as contested, indeterminate and awed. A second part introduces
the alternative, ordering theme of risk by unpacking our understanding and
denition of the word risk and highlighting the prevalence of risk analyses
across social sciences literature. A third part explores how the Housing Act
1996 and the Homelessness Reduction Act 2017 can be reconceptualised
as risk-based systems and how risk provides a framework for understanding
our homelessness law. This involves locating the operationalisation of risk
within the legislation, the precise conceptions of risk engaged and reecting
on how risk exhibits a stronger and more productive explanatory power
of how homelessness legislation functions in practice than the concept of
need.
In a nal section, this article examines the implications of the risk-based
framework advocated and reects on the wider ramications of a r isk recon-
ceptualisation. The argument advanced is not that need has no role or value
whatsoever in homelessness provision but rather that a reconceptualisation ac-
cording to risk as an alternative (but not substitutive) rationale oers novel
insights into the workings of the legislation and unlocks possibilities for fu-
ture reform. Risk as an analytical frame is therefore proposed not in order to
eradicate the ideology of need nor to suggest that need is entirely redundant
but as a novel way of ‘seeing’ and reading the legislation. In so doing, this ar-
ticle identies two contrasting conceptions of risk operating in our law: rst,
a negative, exclusionary notion of risk employed as a technique of gatekeep-
ing and resource rationing including ‘modes of power’ which can be under-
stood as situated within the wider social control literature,5and, secondly, a
positive,inclusionary and more holistic conception of r isk which seeks to mit-
igate the predicted, future har ms of homelessness. It is contended that risk in
this second, positive and inclusive conception can be a progressive and positive
tool to shape future reform. To this end, the case is made for reframing home-
lessness law according to a ‘risk-embracing’ rather than a ‘risk-averse’ concep-
tion as a vehicle for delivering more dynamic and person-centred homelessness
legislation.
a utility maximising framework to housing allocations, recommending housing be allocated
according to those in ‘greatest long-term housing deprivation’, on which see S.Fitzpatrick and
M. Stephens, ‘Homelessness, Need and Desert in the Allocation of Council Housing’ (1999) 14
Housing Studies 413.
5 On social control see generally J.Chr iss,Social Control: An Introduction (Cambridge: Polity Press,
2007); H. Dean, Social Security and Social Control (London: Routledge, 1991).
954 © 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2021) 84(5) MLR 953–973

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