Homelessness, Rights and Discretion in Scotland and Ireland
It has long been recognised that due to their substantial discretion, public sector workers play an important role in making welfare policies, not just passively implementing policies designed by governments. Drawing on her recent study which compares Scotland’s rights-based and Ireland’s social partnership approach to homelessness, Beth Watts looks again at enduring debates about the best balance between rules and discretion in the design and delivery of welfare services.
Since Lipsky first published his seminal book ‘Street level bureaucracy: Dilemmas of the individual in public services’ in 1980, the idea that public sector workers have significant power in shaping how welfare policies work and their outcomes has become ubiquitous. Lipsky’s central argument is that the individual strategies employed by public service workers to meet the substantial work pressures of their role – in the context of their considerable discretion and autonomy – mean that a gap is likely to open up between “policy as written and policy as performed” (Lipsky, 2010, pxvii). As such, ‘street level bureaucrats’ are better understood as policy-makers, rather than merely implementers of policies designed elsewhere.
Whilst public sector workers may have considerable power in deciding how welfare policies work in practice, this does not mean their discretion and power cannot be reduced. Indeed, this would be a misinterpretation of Lipsky’s work. In the preface to the 2010 expanded edition, Lipsky comments that there are two ways to understand the term ‘street level bureacrat’. The first, and how it has commonly come to be used, is to see all public service workers as street level bureaucrats. The second, and how Lipsky intended the term to be understood, is to see “street-level bureaucracy as public service employment of a certain sort, performed under certain conditions” (Lipsky, 2010, pxvii), specifically contexts in which work is under-resources and stressful. As Lipsky clarifies, it is not the case that every frontline worker will always find themselves working in such a context.
Nor should an acceptance of Lipsky’s insights disguise the important fact that discretion is not the same as licence. Public sector workers cannot act in any way they see fit or make arbitrary decisions. Indeed, discretion has been defined the “lacuna in a system of rules” (Goodin, 1986, p234) or the ‘hole in the doughnut’. Discretionary decisions remain subject to principles governing the proper exercise of discretion: they must be proportionate, consistent and based on the consideration of relevant factors. In the UK, judicial review is concerned with ensuring that discretionary powers are used in accordance with these principles.
Last, Lipsky’s insights should not preclude an acknowledgement that different frameworks of policy and law place very different parameters around the discretion of service providers. Departing from the dominant view that discretion is ineliminable from welfare service delivery, Donnison (1977) distinguishes between judgement and discretion: judgement involves the interpretation of rules, whereas discretion leaves space within a system of rules for officials to make a decision as they see fit. According to Donnison, while judgement cannot be avoided in public bureaucracies, discretion can be reduced – and even eliminated – by rules restricting its scope.
A recent study comparing approaches to homeless in Scotland and Ireland sheds new light on these enduring debates. The study sought to explore the impact of Scotland’s legal rights-based (and thus highly rule-bound) and Ireland’s social partnership (and thus discretionary) approach, with a view to empirically interrogating the current orthodoxy that rights-based approaches offer the best response to homelessness (Fitzpatrick and Watts, 2010). The study, which involved interviews with national key informants in both countries, and service providers and homeless men in Dublin and Edinburgh, indicated that legal rights go a substantial way to better meeting the needs of single homeless men than discretionary approaches, and in a way that appears to contribute to minimising the stigma associated with homelessness.
Legal rights achieve this is by minimising the discretion available to service providers working with those who are homeless. Whilst homelessness policies in both countries profess to be ‘housing-led’ and to prioritise the needs of those who are homeless to settled housing, the absence of clear and enforceable rules in Ireland allowed for a substantial gap to emerge between strategic objectives and street-level practice. Homeless men in Ireland faced substantial hurdles to becoming rehoused. Service providers took into account a range of factors in deciding who should be rehoused, when and where, including whether the homeless person was considered ‘housing ready’ and responsible enough to manage their own tenancy; whether the person had addressed or was in the process of addressing any addiction issues; whether or not they had a criminal record; the ‘social mix’ of the area in which they would be rehoused; and the likely reactions of existing residents. In Scotland, the legal rights owed to homeless households by local authorities crowded out these considerations, offering – as argued in a paper recently published here in the European Journal of Homelessness – a blunter but more effective tool in responding to homelessness.
While Lipsky’s insights about the discretion of street-level bureaucrats remain fundamental to understanding social policy implementation, they are not the full story and comparative research plays an important role in illuminating the parameters within which street-level bureaucrats are able (or not) to exercise the discretion he describes.
Donnison, D. (1977) Against discretion, New Society, 41, pp. 534-536.
Fitzpatrick, S. & Watts, B. (2010) ‘The Right to Housing’ for Homeless People, in: E. O’Sullivan, V. Busch-Geertsema, D. Quilgars & N. Pleace (Ed.) Homeless Research in Europe, pp. 105-122 (Brussels: FEANTSA).
Goodin, R. E. (1986) Welfare, Rights and Discretion, Oxford Journal of Legal Studies, 6(2), pp. 232-261.
Lipsky, M (2010) Street-level bureaucracy: Dilemmas of the individual in public services (Updated Edition) (New York: Russell Sage Foundation).
Follow Beth on Twitter: