Legal rights: enforceability and discretion

Legal rights afford avenues of action for individuals, either against others in society, or the state itself, through the domestic court system (Fitzpatrick et al., Reference Fitzpatrick, Bengtsson and Watts2014). The scope and potential forms of redress through specific legal rights tend to be clearly defined, and so legal rights to fulfilment of basic needs can create a ‘counter-hierarchy of power’ (Fitzpatrick et al., Reference Fitzpatrick, Bengtsson and Watts2014: 455) by establishing disempowered individuals as holders of enforceable rights rather than recipients of discretionary charity. Yet how the law is exercised relies upon its interpretation and enactment by those working on the frontlines (Lipsky, Reference Lipsky2010). While Hunter et al. (Reference Hunter, Bretherton, Halliday and Johnsen2016) see the interpretation of the law by street-level bureaucrats as involving a ‘distortion’, in the form of a change to its fundamental purpose and intention, their application of the law can alternatively be argued to be its true expression, meaning that the law cannot be understood without considering how it is implemented in practice by these workers (Maynard-Moody and Portillo, Reference Maynard-Moody, Portillo and Durant2010).

Street level bureaucracy theory predicts that frontline workers will exercise different competing influences in deciding how to allocate scarce resources (Lipsky, Reference Lipsky2010). High level law and policy explicitly exist to influence frontline decisions (Lipsky, Reference Lipsky2010), but these are also contextualised by regional and local policy and guidance, and normative organisational practice (Lipsky, Reference Lipsky2010; Bretherton et al., Reference Bretherton, Hunter and Johnsen2013; Alden, Reference Alden2015), as well as priorities of workers themselves (Lipsky, Reference Lipsky2010). Bureaucratic efficiency privileges effective stewardship of scarce resources, encouraging preferential processing of straightforward cases, and engendering path-dependency. Workers are motivated to identify and adhere to normative practice and clear principles to avoid surveillance (Schram et al., Reference Schram, Soss, Houser and Fording2010), producing evidence-driven decision making and a fear of complex, ambiguous cases (Alden, Reference Alden2015). Yet workers are also motivated by moral-ethical alignment. Personal sympathies with an applicant can transcend their desire for bureaucratic simplicity, leading to extra time or resources spent on cases (Bolton and Boyd, Reference Bolton and Boyd2003; Alden, Reference Alden2015). They may work with applicants to fit them into systems, or strategically share information with them to encourage performative compliance (Maynard-Moody and Musheno, Reference Maynard-Moody and Musheno2000; Jones, Reference Jones2010; Lipsky, Reference Lipsky2010).

Yet deciding whether an individual is entitled to access to assistance through the statutory homelessness system is itself complex, and frontline worker practices have been associated with moralism and an over-focus on efficiency (Bretherton et al., Reference Bretherton, Hunter and Johnsen2013). There is evidence that, in the British homelessness system, frontline workers have a strong preference for evidence and certainty, reflecting a legalistic orientation. They associate the clarity and reliability afforded by a legal rights approach with fairness, with consequent effects upon resource distribution (Bretherton et al., Reference Bretherton, Hunter and Johnsen2013; Alden, Reference Alden2015). Further, domestic abuse is a site where functional access to help has long depended upon performances of narratives of deserving femininity (Cruikshank, Reference Cruikshank1999; Harrison and Davis, Reference Harrison and Davis2001; Sweet, Reference Sweet2019).

Conceptualising domestic abuse: deservedness, moral wrongs, citizenship and discretion

In recent years, domestic abuse has increasingly been conceptualised as a moral wrong inflicted disproportionately against women through structural disempowerment and marginalisation. This framing centres women’s citizenship, and hence understands abuse as a gender based human rights violation. This approach has its roots in the early feminist movement, which explicitly challenged the idea that a woman’s experience of abuse resulted from her own culpability (Sweet, Reference Sweet2021; Murray et al., Reference Murray, Bullen, Theobald and Watson2022). It rejects a narrative of disempowerment associated with victimhood (Meyers, Reference Meyers2011), rather recognising abuse as caused by gender-based structural violence (Sweet, Reference Sweet2015). Extending the recognition of female citizenship and consequent right to protection from gender-based abuse, the distinct expertise of those working in the area has been integrated into development of policy and legislative frameworks to address domestic abuse, and, following decades of strategic campaigning from the sector, domestic abuse has been reframed as a criminal, rather than private matter (Charles and Mackay, Reference Charles and Mackay2013; Ishkanian, Reference Ishkanian2014; Jurasz, Reference Jurasz, Rackley and Auchmuty2019; Bates and Hester, Reference Bates and Hester2020; Sweet, Reference Sweet2021). However, the legally enforceable rights of those who have experienced domestic abuse to other forms of help and support aside from punitive action toward perpetrators has not substantially improved despite these declarations of moral obligation. The resources available to the domestic abuse sector have been especially affected by ongoing public sector cuts (Charles and Mackay, Reference Charles and Mackay2013; Ishkanian, Reference Ishkanian2014; Murray et al., Reference Murray, Bullen, Theobald and Watson2022). This means that the practical reality of service provision for those who have experienced abuse, even within a human rights orientation, may be very different to the empowerment-based intentions of policy and legislation. Insecure, short-term and competitive funding, combined with restrictive, heteronormative understandings of female victimhood, mean that specialist services become a place associated with constrained choice (Ishkanian, Reference Ishkanian2014). This is especially likely to be the case for those who fall outside a heteronormative, racialised service norm (Sweet, Reference Sweet2015). Services demanding ‘pathetic victimhood’ (Meyers, Reference Meyers2011: 255) validate women’s experiences of abuse only where they are accepted to have been rendered helpless by an overwhelming, debilitating injustice, and so impose a threshold performative conditionality upon women’s access to assistance (Purvin, Reference Purvin2007; Sweet, Reference Sweet2019). Mackenzie et al. (Reference Mackenzie, Conway, Hastings, Munro and O’Donnell2015) understands this through the lens of ‘candidacy’ – a ‘socially constructed process by which individuals identify themselves as candidates for particular conditions and interventions, and subsequently negotiate these candidacies with professional operating in particular service regimes’ (Mackenzie et al., Reference Mackenzie, Conway, Hastings, Munro and O’Donnell2015: 44). They propose that candidacy provides a way to understand how women who have experienced domestic violence are required to carefully curate performances of need and docility to be read as deserving victims. Specialist domestic abuse services have also been associated with high levels of surveillance and control, which paradoxically replicates experiences of in-home abuse (Bimpson et al., 2020). Therefore, despite an apparent human rights orientation within services, services cannot be assumed to be an optimum or preferred option for all those becoming homeless following domestic abuse.

In recent years, legal rights within homelessness have become increasingly overlaid with broader moral frameworks, including those which declare an objection to domestic abuseFootnote ¹ . These require homelessness departments to improve the experiences and service access of certain groups, but seldom include clear requirements placed upon individual workers. They are top-down, exerted upon states and governments, rather than legally actionable by individuals. For instance, several countries have a constitutional right to housing or homelessness relief but lack a clear route to enable homeless individuals to force governments to honour this. This approach to rights has been seen as advantageous in creating a moral goal, and so encouraging a problem-solving, collaborative approach to justice, which is made possible precisely because of a lack of enforceability (Fitzpatrick et al., Reference Fitzpatrick, Bengtsson and Watts2014; Mackie, Reference Mackie2014). Yet these rights are also especially likely to be broad, non-specific and difficult to apply in practice (Fitzpatrick et al., Reference Fitzpatrick, Bengtsson and Watts2014). Further, in a context of resource shortage and scarcity, frontline worker discretion tends to privilege legal rights over legally unenforceable moral commitments (Fitzpatrick et al., Reference Fitzpatrick, Bengtsson and Watts2014; Alden, Reference Alden2015). In effect, programmatic rights become discretionary (Bretherton et al., Reference Bretherton, Hunter and Johnsen2013; Fitzpatrick et al., Reference Fitzpatrick, Bengtsson and Watts2014; Alden, Reference Alden2015).

Layering moral commitments upon legal rights: the Welsh approach

Legal rights are well established within the British homelessness sector. Since 1977, those at serious risk of harm as a result of homelessness have been entitled to access to state provided, affordable housing primarily through the British social housing sector (England and Taylor, Reference England, Taylor, Gwylim and Williams2021). Since 2001 in Wales (and 2002 in England), those who have become homeless due to domestic abuse have been afforded priority access to social housing stock. Prior to this, domestic abuse could form part of evidence that an individual was exceptionally vulnerable under s 1(2)(c) of the Housing Act 1996, which amended the 1977 Housing (Homeless Persons) Act provision to allow those considered especially at risk if they became homeless (and also meeting certain other criteria, notably non-culpability) a right to assistance if they became homeless.

The Welsh Housing (Wales) Act 2014 pairs legally unenforceable moral commitments with established legal rights to homelessness relief. Those becoming homeless due to domestic abuse remain eligible for priority access to assistance, including state-provided housing (Ahmed et al., Reference Ahmed, Madoc-Jones, Gibbons, Jones, Rogers and Wilding2020; England and Taylor, Reference England, Taylor, Gwylim and Williams2021). It uses the expansive, inclusive definition of abuse and perpetration developed in the Istanbul Convention (Housing (Wales) Act 2014 (58)). The Code of Guidance to the Housing (Wales) Act 2014 centres victim choice over accommodation and assistance (see Welsh Government, 2016: paras 3.115, 3.116, 3.118 and 19.23), recognising the importance of a multi-agency approach for those who have become homeless as a result of domestic abuse (see para 5.57). The Guidance also stresses the importance of intersecting marginalisations in addressing domestic abuse (see para 5.63, 6.17-6.20). Recognising the importance of homelessness services as locations where those who have experienced domestic abuse may present, alongside the difficulties faced in disclosing abuse (Murray et al., Reference Murray, Bullen, Theobald and Watson2022), homelessness services are encouraged to adopt an ‘Ask and Act’ approach: frontline staff are charged with being aware of the possibility and impact of domestic abuse upon applicants and expected to take appropriate action, including, but not limited to, use of specialist referrals.

Outsourcing services for those who have experienced domestic abuse to the domestic abuse sector is a natural extension of an approach in which specialist third sector organisations are increasingly contracted by local authorities and governments to provide core services (Parsell and Marston, Reference Parsell and Marston2016). This potentially offers better targeted, culturally competent provision. However, it creates three issues. First, domestic abuse services are critically underfunded compared to homelessness services and often unable to meet demand. This especially affects applicants with complex needs, and with additional loci of marginalisation (Murray et al., Reference Murray, Bullen, Theobald and Watson2022). Second, provision offered by domestic abuse services seldom mirrors that available in the homelessness sector: it is primarily a temporary crisis response. The British specialist domestic abuse sector lacks the capacity to systematically offer long term accommodation, or to meet the full range of needs of those becoming homeless following domestic abuse (Ishkanian, Reference Ishkanian2014). Early appraisals of the retooled Welsh response to domestic abuse have drawn attention to how the core aims of consistency, sensitivity, and access to specialist responses to enable those who have experienced domestic abuse to exercise choice and autonomy are undermined by lack of training and knowledge, and failure to plan for the specific needs of those who have experienced abuse within non-specialist services (Jurasz, Reference Jurasz, Rackley and Auchmuty2019). Third, the legal rights of those who have experienced abuse are eroded under the new system, with the introduction of a behavioural conditionality requirement which means that those who have faced abuse risk having their access to help terminated if they are not perceived to be engaged in looking for housing. In the remainder of the paper I explore how a policy with a strong focus on moral commitments is operationalised and implemented by practitioners on the ground, and what the implications of this are for people who experience domestic abuse and require service support.

Domestic abuse as too complex for the homelessness system

A proactive approach to identifying domestic abuse resulted in cases becoming recategorised as too difficult, complex or specialist for homelessness services to deal with. Workers feared the consequences of mistakes where domestic abuse was involved. This led to a de-responsibilisation: workers minimised their own role and sought ways to refer out of the main homelessness system, along clear pathways. Greater knowledge of domestic abuse gained through training and awareness promoted a programmatic understanding of domestic abuse as an immoral, human rights abuse. Paradoxically, this reduced worker confidence in their ability to handle cases. Jane, a decision-maker, explained that after attending a recent training course on domestic abuse organised by a national organisation, she was ‘always on the alert now with it, my antennae…[mimes wiggling fingers]’. Yet the same training had emphasised to her her own lack of knowledge: she now saw these cases as beyond her own expertise and the proper remit of specialist.

Workers saw expanded options for referrals and partnership working introduced under the new Act as enabling simplification of their role. Where a referral could be made, they concentrated upon facilitating this referral, rather than managing homelessness within the service itself. They saw their primary responsibility as efficient gatekeeping and triage (Lipsky, Reference Lipsky2010; Alden, Reference Alden2015). Lleuci explained how she preferred the clear referral pathways available to her under the new system, because it made her responsibilities both clear and bounded.

Worker lack of confidence around domestic abuse also centred on concerns about evidence standards. They felt that where applicants claimed that domestic abuse had occurred, cases received little scrutiny, which compromised fairness within the service. Previous studies have found that homelessness workers place disproportionate weight on authoritative medical evidence in assessing cases (Alden, Reference Alden2015). Also common was use of standardised tests developed for use within domestic abuse services themselves to ensure that those already identified as having experienced abuse received the right kind of help. Here, however, the same tests were used to determine whether the abuse reached a hypothetical threshold level at which a homelessness sector response was justified. These were seen as offering a level of objectivity to offset the highly emotive nature of claims. Nadia, a decision-maker, explained how the moral repugnancy of domestic abuse itself justified, for her, a referral pathway based upon a set of standardised questions.

Creating a moral imperative to help meant moral commitments contributed to both increasing standardisation and de-responsibilising of workers in the homelessness system. Referring out of the homelessness system was justified by a belief that it could not provide the specialist, professionalised interventions needed by those who had experienced abuse. However, as will be shown in the next section, this led to reduced choice for applicants.

Domestic abuse and service illegibility

Applicants rejected an understanding of themselves as necessarily traumatised and disempowered (see Donovan et al., Reference Donovan, Hester, Holmes and McCarry2006). They valued recovery, independence, and autotomy – ‘living this one life as best I can, not all about him.’ (Jade, applicant). Choice and flexibility were essential to those who had experienced abuse, but where asserted, risked their being seen as undeserving. They found that local authorities poorly understood their need for safety other than through referring them to specialist services or refuges out of the area. Helen explained how being coded as a ‘domestic abuse survivor’ was a restrictive experience for her. She had chosen to stay in her local area with her son, rather than creating physical distance between herself and her abusive ex-partner. This was an active choice which formed part of her recovery. Moving out of the area would have disrupted her social network, her access to employment and her son’s schooling. While she was ultimately successful in obtaining accommodation, she felt that because she had experienced abuse, she was subject to extra, humiliating, scrutiny by the homelessness department.

A suspicion of female empowerment within the British homelessness sector is longstanding, and is closely related to concern over system scarcity and preferential routes through the system for women (Davis, Reference Davis, Harrison and Davis2001; Bimpson et al., 2020). Confirming applicant fears, exercising choice generated suspicion. Workers saw decision-making by women who had experienced domestic abuse as potentially suspicious. Workers were anxious over perceived limited ability to ascertain whether abuse had occurred using ‘objective’ evidence (Bretherton et al., Reference Bretherton, Hunter and Johnsen2013). To offset this, they relied upon normative understandings of need which aligned closely with ‘pathetic victimhood’, meaning that they perceived need as genuine only where it was visibly overwhelming, disempowering and desperate (Meyers, Reference Meyers2011). Loretta, a decision maker, explained how she interpreted an applicant’s ability to make choices as indicating that their claim of domestic abuse was potentially fraudulent.

Consequently, applicants who wanted help had to make a choice between asserting autonomy and conforming to expectation of how women who had experienced abuse ‘should’ behave. They were aware of a need to strategically manage their performances of victimhood (Mackenzie et al., Reference Mackenzie, Conway, Hastings, Munro and O’Donnell2015). To increase their chances of success, they had to behave as ‘good domestic abuse survivors’, which meant surrendering control and choice. Faith recognised that for her experiences to be regarded as genuine, she needed to accept the forms of help offered, even if they compromise her own recovery. If she did not performatively accept her caseworker’s categorisation of her as a ‘victim’, and with it a referral to specialist domestic abuse services, she risked losing access to homelessness services, with longer term implications for her ability to access state-provided housing.

The forms of domestic abuse survivor citizenship enabled by human-rights framework approaches to domestic abuse centre women’s choice, empowerment and autonomy as strategies to counter and recover from abuse. However, these attributes were read as problematic within homelessness systems where they obstructed referral into specialist services. This interacted with gendered notions of passivity to penalise those who resisted, or did not fit into, existing referral routes.

Domestic abuse as a threat to homelessness service resources

Finally, domestic abuse was seen, by workers, as an unpredictable, disproportionate drain on time and resources. Referrals to specialist services became a way to contain, systematise and so efficiently process these applicants. They offered a solution to difficult, complex, and illegible cases. The morally compelling nature of these cases meant that workers were concerned that extravagant, or indulgent, decisions were possible, undermining good stewardship of resources. There was a broad sense that domestic violence created potential undefined, unsustainable demands upon the system which workers needed to guard against for the benefit of all homeless applicants. One worker described her fears of domestic abuse as ‘a blank cheque, god knows there’s so much of it, could be all we do day in day out.’ (Valerie, decision-maker). Henrietta a decision maker, articulated a widespread concern that the sheer prevalence of domestic abuse created an unbounded demand upon the system. She worried that the homelessness system could easily use all its resources only on processing domestic abuse cases.

Peer culture is especially important as a location where context specific normative decisions around resource distribution can develop and be maintained. It can operate as a bulwark to system change demanded by higher-level policy and law (Maynard-Moody and Musheno, Reference Maynard-Moody and Musheno2000; Bolton and Boyd, Reference Bolton and Boyd2003; Lipsky, Reference Lipsky2010; Alden, Reference Alden2015), There was some evidence that homelessness workers operated in a culture which promoted and reinforced a conception of domestic abuse as a threat to the smooth running of the system. Those interviewed were often exceptionally attentive to the practices of colleagues in cases involving domestic abuse. They spoke with disapproval of colleagues who spent a long time on these cases, characterising this as a threat to collective, shared responsibility. As Marianna explained, ‘It’s a small office, so it matters we’re all on the same page.’ For Joel it was about ‘everyone pulling their weight, being sensible.’. They saw long periods of time spent on domestic abuse cases as potentially indulgent, unwarranted, and creating a burden on other staff. To fail to manage time effectively through spending time on domestic abuse cases meant that a staff member risked being seen as unprofessional.

Workers internalised a need to demonstrate that they were making rational, reasonable decisions in these cases. They were aware that to take decisions which reflected the morally compelling nature of domestic abuse cases risked additional surveillance and critique. To offset this, they performatively demonstrated emotional distance and objectivity. Although the Guidance to the Act encourages homelessness services to avoid demanding evidence and to prioritise the safety and confidentiality of an applicant who has experienced abuse, decision-makers emphasised the need to seek evidence. Olivia articulated this sense of conflict between her own desire to help, based on her empathetic desire to alleviate suffering, and her recognition that without additional evidence the case was unlikely to advance.

Referrals out of homelessness services, and into specialist domestic abuse services, therefore provided a moral simplicity alongside reducing bureaucratic complexity (Lipsky, Reference Lipsky2010). They mitigated the risk to the system created by applicants who had experienced abuse, and so increased the efficiency with which workers could process cases. Integration of the domestic abuse support sector with the homelessness sector therefore reduced choice and imposed a ‘pathetic victim’ subjectivity upon applicants but was seen by workers as providing a benefit for the system overall, through greater efficiency.