‘PRETTY BORING STUFF’:DISTRICT JUDGES ANDHOUSING POSSESSION

PROCEEDINGS

DAVE COWAN AND EMMA HITCHINGS

University of Bristol, UK

ABSTRACT

In this article, we demonstrate how judgecraft, though mundane in the context ofhousing possession proceedings in England, involves the client-processing mentalitysuggested in Lipsky’s work on street-level bureaucracy. Although they may beregarded as mundane, the consequences of these proceedings may well be dire,producing homelessness and other forms of extreme housing need. Lipsky helps us,because his work enables us to think about the factors that make up ‘being a DistrictJudge’. Having discussed the background to housing possession proceedings, includ-ing their growth, we discuss this client-processing mentality in the context of theways in which District Judges seek to control their clients as well as processes in thecourtroom. Repeat-players are moulded by individual District Judges throughroutines, discipline, and just knowing what is expected. In particular, crucial decisionsare made as to the worthiness of claimants and occupiers. As a result, relationshipsof trust develop which facilitate a ‘rubber-stamping’ approach. In the conclusion, wereflect on the value of Lipsky’s work as well as its limits in this context.

KEY WORDS

bureaucracy; discretion; judging; Lipsky; possession; street-level

Introduction

I mean [possession proceedings are] pretty boring stuff. It’s not intellectuallydemanding, as you’ve seen. And my response is largely instinctive rather thanintellectual but it’s important, and what could be more important than, well,

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what could be more important? Life and death, I suppose. But otherwise takingyou out of your, of your home, Article 8, and all the rest of it. So that’s whatsort of keeps me, keeps me going doing this stuff. (District Judge A)

We are regularly told that we should study the humble and mundane,or the commonplace, so that we can better illuminate a variety ofdifferent social/legal op/positions. So, for example, studies of the

mundane may highlight versions of legality (Ewick and Silbey, 1999) or, moreprogrammatically, the ways in ‘which authorities seek to instantiate govern-ment’ (Rose and Miller, 1992: 183). Nevertheless, talk of the humble andmundane involves a subjective, qualitative judgment.

The subject matter of this article – possession proceedings for rent arrearsagainst social tenants in England – is anything but humble and mundane.Possession proceedings can result in nothing less than the loss of one’s home(an outright possession order); an order made against an occupier (a suspendedpossession order, ‘SPO’) which operates effectively like Damocles’ sword –one further failure to pay rent or breach of covenant operates automaticallyto terminate the agreement; or the proceedings could be adjourned ordismissed. Possession proceedings against an occupier of ‘social housing’ canhave even more dramatic consequences as the evicted household may forfeitany rights to be rehoused in that sector.1

Yet, despite these consequences, possession proceedings against tenants ofsocial housing are mostly treated (by landlords and courts) as usual, mundane,ordinary, commonplace, even dull. They are occasionally interspersed withmoments of high tension, for example, when a landlord requests an orderwhich is out of the ordinary, or when an occupier actually attends in person.Cases tend to be block-listed – sometimes up to 50 or 60 cases in a morning’ssession between 10 am and 1 pm. There are moments of bewildering activity,in which cases are dealt with as a matter of routine (for example, where theparties have agreed a result in advance), interspersed with passive periods,when the District Judge (hereafter ‘DJ’) waits (for example, because thedefendant is in an often lengthy queue to obtain advice from a hard-pressedduty desk legal advisor, and/or for the landlord to seek a compromise agree-ment with the occupier). The DJ may wait not because they are powerless,but because they actively court such agreements. Possession actions arecoercive, disciplining and controlling social processes through which land-lords are able to extract bargains. The role of the DJ, then, is often to provide‘symbolic reassurance’ (Prosser, 1977).

These cases involve an acting-out process. Mostly, as all the actors know,the proceedings are caused by a failure of a different part of the welfarebureaucracy to pay a personal subsidy to the occupier, known as ‘housingbenefit’. Mostly, the result of cases will be either an SPO or an adjournment,in either case with the occupier required to pay their rent and, in addition,£2.75 per week (£2.75 being the maximum contribution a non-wage-earner isentitled to make). This result is generally pre-determined. And mostly, becausethe knowledgeable actors know this likely result, they seek to negotiate and

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agree most cases. Most of the bargaining, in other words, takes place in theshadow of the courtroom as a result of precedent established in the court-room (Lempert and Sanders, 1986). The actors simply have a walk-on role.

These proceedings, then, provide a fruitful context for the study of a client-processing mentality in the vein of Lipsky’s (1980) classic but neglected studyof street-level bureaucrats (Hudson, 1989). DJs are a breed of street-levelbureaucrat (explicitly included by Lipsky), although such a descriptionappears counter-intuitive and has been a neglected facet of Lipsky’s work.2They are highly qualified lawyers and well-paid public servants. They aresubject to little, if any, central control beyond the governing case law andlegislation, as well as the disciplining prospect of appeal. Although there is asupporting bureaucracy of court clerks and administrators, as well as courtmanagers who list cases (subject to the DJ’s practice), the DJ sits at the topof the pile or independent of that bureaucracy.

Lipsky’s (1980) thesis is outlined in the preface to his book. There, he arguesthat ‘the decisions of street-level bureaucrats, the routines they establish, andthe devices they invent to cope with uncertainties and work pressures, effec-tively become the public policies they carry out’ (p. xii). Furthermore, policyconflict is located not just between public interest groups but also ‘in thestruggles between individual workers and citizens who challenge or submitto client-processing’ (p. xii). Lipsky helps us, because his work at leastenables us to think about the factors that make up ‘being a DJ’ and the‘emotional labour’ that doing the job must entail (Roach Anleu and Mack,2005). The purpose of our article, therefore, is to recapture the essence of thatwork in this context, locating DJs as street-level bureaucrats in the mundanetask of determining rent arrears possession cases.

In doing so, we put a new, or different, gloss on the craft of judging. Thetitle of this special section, ‘Judgecraft’, suggests the conscious developmentover time of careful techniques and strategies to underpin the social practiceof judging. Craft is about expertise, the development of a virtuoso skill, asdiscussed by Kritzer in his article in this issue (drawing on Becker, 1978). Yet,DJs regularly described rent arrears possession proceedings as not requiringany special expertise, skills or knowledge. They were treated as mundane,everyday experiences (with the occasional need for problem solving, asKritzer suggests). In this sense, like Mack and Roach Anleu in their articlein this issue, the judgecraft lies in pushing through the cases. Boring cases areimportant because they can disclose underlying assumptions about organiza-tions and persons, particularly when these cases are grouped together inunwieldy caseloads, or even just about legal process itself. The special skillsrequired of DJs are no more than (say) an academic choosing of the nextundergraduate intake of 100 students from 3000 applications.

And this is precisely where Lipsky can assist us in uncovering and explain-ing the unwritten rules, which override a general discretion in practice. Theclient-processing mentality described by Lipsky (1980) provides important,relevant insights of considerable benefit to socio-legal studies generally, notjust in the specific context of this article. As one of the referees of this article

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nicely put it, Lipsky is ‘an author generally understood merely to haveinvented a name rather than say much more about service delivery’; thisarticle seeks to act as a corrective to the narrow view. However, although weclearly view Lipsky’s work as insightful, we would not want to suggest thatit is perfect by any means (a position to which we return in the conclusion).

This article begins with discussion of the background to our research,setting out the growing importance of possession proceedings within socialhousing management. We then go on to discuss our methodology and inter-rogate our interview sample, demonstrating that DJs are mostly expertswithout expertise. In the third section, we discuss their client-processingmentality, and specifically the way DJs seek to control their clients as well asprocesses in the courtroom. Repeat-players are moulded by the DJ throughroutines, discipline, and just knowing what is expected. As a result, relation-ships of mis/trust develop.

POSSESSION PROCEEDINGS AS (GROWTH) INDUSTRY

Between 1994 and 2003, there was a 108 per cent rise in numbers of possessionproceedings brought by social landlords, although the increase actually beganto tail off in 2002. The number of actions brought in 2003 – 135,829 – repre-sented around 3 per cent of all social housing tenants. Pawson et al. (2005)record that between 1997 and 2002 the value of rent arrears owed by currenttenants of local authorities rose by 20 per cent from £335 million to £403million, although the total fell back in 2003 to £349 million. By contrast, theynote, the proportion of social sector tenants in arrears has generally been staticor falling, implying that the average debt per debtor must have increased.Indeed their figures indicate that the average value of arrears per debtor rosefrom £249 in 1997 to £349 in 2003 – an increase of 42 per cent. In 2003, theproportion of local authority occupiers in arrears of more than 26 weeks was6.7 per cent. Thus, the potential pool for possession actions is deep.

A number of reasons have become apparent for the rise in possession actionsover this period. Most prominent has been the marked shift in social housingaway from a bureaucratic, Fordist model of provision, to a more entrepre-neurial, responsibilized model (see generally, Cowan and McDermont, 2006).This has been bolstered and manufactured by a number of key managerialshifts, which hinge upon a plethora of performance-enhancing mechanismsemploying techniques of audit and benchmarking, as well as less subtle finan-cial pressure through levels of subsidy paid out by the state. Rent arrears cost– it costs managers and the housing provider internally and externally. Thereare consequential impacts on future development, credit ratings, approvalratings, let alone solvency issues. There are reputational issues at stake. Socialhousing providers operate in a competitive environment in which the valuesexpressed through audit create hierarchies affecting future development (thatis, a social landlord’s audited poor performance will affect their ability to raiseprivate finance). These processes were set in train in the late 1970s, but

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became particularly apparent in the 1990s as organizations became moreaccepting of, and less resistant to, these values.

These performance measures have been combined with two central problemsat the level of the individual occupier. First, social housing occupiers are nowmore marginalized – or socially excluded – than ever before (Murie, 1997).Second, and as a direct result of the marginalization of those occupiers, theshift from subsidy for building to personal subsidy which began in the 1970shas had a dramatic impact: considerable numbers of social housing tenantsare now reliant on housing benefit (ODPM, 2004). This reliance on housingbenefit places great strain on its administration; strain which, frankly, has ledto overload in certain areas, sometimes exacerbated by poor-quality agencyprovision after the service has been contracted out (Audit Commission,2002). Thus, housing benefit is a major cause of rent arrears in social housing.

The growth of possession proceedings has also been attended by complaints(generally by landlords) about the inefficiency in court proceedings (althoughLipsky (1980) suggests that performance improvement can be counter-productive in leading to an increased demand for the service). Anecdotally,there were suggestions by both landlord and client advocates of differentialperformance between County Courts, between DJs within the same court,and indeed between cases heard by the same DJ. These concerns, then, providea context for the bargaining process ‘in the shadow of the law’ as well as‘bluffing it’ (Monookin and Kornhauser, 1979; Lempert, 1989).

DJs in housing possession cases generally have plenty of discretion bothin terms of procedure as well as the law. Complaints about inconsistency andinefficiency should be moderated by the width of this jurisdiction. In mostcases, the ground for eviction on the basis of rent arrears is proven – if it isin dispute, that dispute will usually be moderated in some way – and the onlyquestion is whether it would be reasonable to grant possession. The notionof reasonableness in this context has been defined to give significant roomfor manoeuvre: ‘the duty of the judge is to take into account all relevantcircumstances as they exist at the date of the hearing . . . in a broad, commonsense way . . . giving weight as he thinks right to the various factors in thesituation’ (Cumming v Danson [1942]).

METHODOLOGY

RESEARCH METHODS

Our research methods limit the frame of this article and were, themselves,limited to a snapshot on possession proceedings at a particular moment intime. We were tasked by the Department for Constitutional Affairs toexamine the factors taken into account by DJs in housing possession cases,and consistency between DJs (among others). These questions required a mixof qualitative and quantitative methods. This article draws predominantly onthe qualitative element of the work. We began with a series of six focus groups

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with practitioners in three areas, which were used to inform our appreciationof tensions and locality, as well as assist with the framing of the research inthe second and third phases. The second phase involved the observation of894 court hearings in possession cases across four English courts: northern 1,northern 2, London and the West Country. The courts were chosen to reflectcertain characteristics, which might impact on the way possession cases weredealt with, such as high/low use, rural/urban, and different types of sociallandlords (predominant local authority, local authority/RSL, RSL).

The third phase involved qualitative interviews conducted by members ofthe research team with 26 DJs. These interviews were structured into twobroad parts. The first part drew on a semi-structured questionnaire arounda number of key topics about the DJ’s background experience; their approachto decision making in possession cases; their views about procedure andexternal factors (including housing benefit); the impact of landlords and theirrepresentatives; the impact of clients and their representatives; finally, theywere asked about warrants of possession (the final stage of the process). Thispart of the interview was designed to elicit information about the influenceson decision making, for example from their training to the kinds of consider-ations about ‘repeat players’ which are mentioned in the literature.

The second part of the interview involved the presentation of scenarios tothe DJs to gauge their responses to them; the order they would make in thatcase on the basis of the facts provided in the scenario; and their explanationsfor making that order. This part of the interview was designed to overcomethe problem, anticipated by the research team, that DJs would not feel ableto talk about specific cases. The scenarios were developed, then, to reflect therun-of-the-mill, ordinary possession case with a number of variations (suchas issues with housing benefit, technical problems with non-rent expenses).

Ours is a partial study in that the only actor interviewed individually wasthe DJ (and occupiers themselves were not interviewed at any stage duringthe project). The DJs interviewed were themselves only a small sample and,given the unavailability of these data, it was not possible to interrogate howrepresentative this sample was of DJs more generally. Thus, we cannot drawgeneralizations beyond our data (although the analytical frame provided byLipsky does produce such a tendency). Equally, researching DJs is not aneasy job. Access arrangements can be tricky, although most were welcomingboth in the courts as well as in their offices once access had been arranged.

There were other limitations in our research design. In our observationwork, we could not be sure what effect our attendance had on case process-ing as some DJs were only observed once; our interview data may have beenconstrained by what our informants were willing to share with us; and, moregenerally, the source of our funding – the state department responsible forthe judiciary – may have impacted on our research subjects. Some attemptwas made to control for some of these problems by interviewing DJs whosesessions we had observed, and ‘snowballing’ out among local DJs. Even so,as they were clustered around particular locations, our study could provideonly a partial glimpse of the range of possibilities.

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Nor was ours a longitudinal study. We thus cannot construct a version of‘court culture’, despite suspicions that such a culture did exist in certainparticipant courts (and was ruptured at points by locum Assistant DJs). Our‘local knowledge’ (Lempert, 1990) is therefore limited and sometimes basedon assumption and hunch. The connection of our data with the ‘street-levelbureaucrat’ frame was also a late starter. It emerged after our data had beenanalysed and we resorted to it, in part, to explain some of the counter-intuitive things we were told or observed.

INTERROGATING THE SAMPLE: EXPERTS WITHOUT EXPERTISE

DJ interviewees were geographically spread and had a variety of experience.Half of them had been sitting as a District Judge, or deputy, for more than15 years in total, and seven for less than 10 years. Interrogating our samplefurther provided some interesting, perhaps counter-intuitive, findings. First,practically none of the DJs in our sample had experience of housing law priorto becoming a DJ. Most had been solicitors in private practice whose experi-ence of housing had involved the occasional private rented sector problem.Nine said they had had no relevant experience prior to appointment.

Second, their training or inculcation into the unusual world of housing lawwas negligible – the odd training hour or so as part of a refresher course – andmany felt under-trained for this type of work. However, they contented them-selves with the observation that housing possession proceedings themselveswere not necessarily the most technical type of action. They were able to relyon generic skills and common sense. Third, DJs tended to regard themselvesas independent units in their own right (cf. Lipsky, 1980, on the usual import-ance of peer groups). They might seek out their peers for informal meals anddiscussion. A number of our interviewees, for example, regarded the intranetsystem, known as Felix, as a source of training and solace. Felix provided avirtual space in which difficult cases could be discussed and answered. Evenso, DJ interviewees had a high degree of independence and autonomy.

At heart, being a DJ in a housing possession list in which discretion was(usually) paramount was, as Lipsky (1980) suggests, being in a policy-makingrole. Policy making narrowed their discretion (‘familiarity . . . breeds prece-dent’; Lempert, 1992: 208). Thus, for example, some DJs in our study hadrules of thumb or more rigid rules about the level of arrears below which theywould not make an order, or above which they would make an order. Thisthreshold varied between £200 (DJ U), £500 (DJ H; DJ L) and £1000 (DJ O).Some clearly applied their threshold rigidly; others were more flexible takinginto account the worthiness of the clients (see below). The tendency though,was towards what Lempert and Sanders (1986) have described as ‘shallowdecision-making’:

One important factor is that, when a decision-maker is repeatedly confrontedwith cases of a particular type, there is a tendency toward . . . ‘shallow’ decision-making. That is, there is a tendency to eschew a deep probing of circumstances

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and to rely instead on a few key facts that can be used to fit cases to stereo-types. (Lempert, 1992: 216)

Possession proceedings are repetitive and, over time, they must becomemundane and boring. They were generally classified against a limited numberof binary oppositions. And ‘the routinization of inquiry minimizes the extentto which street-level bureaucrats can discover unique circumstances requiringflexible responses’ (Lipsky, 1980: 122). DJs assumed, for example, that mostrent arrears were caused by housing benefit and that the possession proceed-ings were really acting out a debate which should take place elsewhere. Occu-piers’ vulnerabilities might disclose different and more nuanced reasoningbut this line of inquiry was closed off by the housing benefit assumption.

ROUTINES AND SIMPLIFICATION OR WHO ARE THE WORTHY?

The range of possible decisions, and their sheer bulk, require the DJ to havesome criteria to make case processing possible. One such mechanism employedwas the notion of worthiness. This construction of worthiness not only madethe processing of these cases possible, but had the knock-on effect of creatingand involving routines. Routines require simplifications, as well as occu-pational and personal bias. These simplifications enabled time to be spent onthe more troubling cases, or the cases where some positive benefit might bepossible. As Lipsky (1980) notes,

The problem is not that moral judgments are made but that the diffuse moralassumptions of dominant social orientations are likely to influence the decision.Or that dominant values may shape decisions despite competing normativestandards that would provide alternative solutions. (p. 100)

Furthermore, Lipsky notes that deviations from the norm of equal treatment– a norm at the forefront of court proceedings – ‘establishes standards ofclient behaviour from which deviation is measured’ (p. 112). Equally, and thisprovides an important reference point in this and the next section, criteria ofworthiness operated in our study as a mechanism of controlling the actorsand space of the courtroom.

Criteria of worthiness also concerned the marking-out of identity, both ofthe DJ as well as their clients. It was a process that was both fixed and inaction (splicing and resplicing, to draw on the terminology in Blomley, 2003).Certain strongly held beliefs – for example, about the social – were mixed inwith interactive, mutually constituting identity-making events:

Identity fixing is, however, not mutual in the sense that both sides are equalpartners. The workers alone retain the power to define and fix, and to unfix andredefine, citizen-clients’ identities. This power affects the interactions betweenworker and client and, by extension, defines the relationship between state andcitizen. (Maynard-Moody and Musheno, 2003: 155)

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THE WORTHY LANDLORD

DJs need a structure of worthiness to make divisions between landlords.These criteria tended to be more nuanced and related, for example, to thequality of representative, the order they were seeking, and their approach tothe court. Nevertheless, both sets of criteria ended up with binary divisionsbeing drawn between the worthy and unworthy, and the fixing of identitiesover time. For example, landlords regarded as worthy did not become un-worthy because they requested an out-of-the-ordinary order; rather, in thesecases, DJs saw an underlying, silent rationale for the request, which might beaccompanied by a recognition of a change in behaviour:

If they are seeking an outright order or if they are opposing a warrant suspen-sion, there’s normally a pretty good reason for them to do so, it has to be said. . . if he’s opposing an application then there’s normally a good reason, even ifthere’s not a sufficient reason. (DJ J)

This position can be contrasted with the situation where the landlord regu-larly over-claimed – such as continually requesting an outright order. DJ Hreferred to a ‘cry wolf scenario’ where claimants requested certain orders toofrequently; and DJ P made clear that, after dealing with an ‘unreasonable’representative, ‘I can’t say her card is marked, but I’d look carefully at any-thing she did in the future. I thought [her approach in that case] particularlyunsympathetic.’

TRAINING AND MIS/TRUST Landlords became worthy when their courtrepresentatives – mostly housing officers – had been disciplined into therelevant way of acting by the(ir) DJ. Our DJ interviewees referred to this asa process of training, which took place over time. During this period,landlord representatives became conversant with the particular practices ofthe particular DJ, and, indeed, could predict the range of questions. Trainingalso facilitated the routinization of the roles. Training made the list runsmoothly because housing officers had ‘got the answers off pat’:

If you’re dealing, as we do, with 50 or 60 cases a day, it’s helpful to have areasonably set routine so we all know where we are, and they know what ques-tions I’m going to be asking and they have their answers straight off pat, andit’s quite a lot more effective . . . (DJ J)

Training, thus, operated as a controlling mechanism. It structured the possiblerange of questions and appropriate range of responses. As Lipsky (1980) putsit, training is a social process through which people are transformed intoclients. Teaching (Lipsky’s term) enabled expectations to be set not necess-arily about the levels of service the client might expect from the DJ, but aboutthe range of questions and possible decisions. Some DJs, for example, nevergranted outright orders and rarely granted suspended orders – asking forsuch orders would, therefore, be counter-productive. The very use by DJs of

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the ‘training’ metaphor was an expression of their controlling status withinthe social hierarchy of the court room; for they were the trainer and theclients the trained, the pupil. Some DJs also recognized that they were beingtrained (although this was rare) by those appearing before them (such as therequest of an out-of-the-ordinary order).

Effective training depended upon longevity in the relationship betweenboth DJ and representative. Longevity bred trust and confidence:

Over the years you see how they approach a case. If they approach it obviouslyon common-sense principles that they know I’m going to go along with. (DJ T)

But I suppose you get to an extent where you find that where you challengedthem [the landlord] on a few occasions, and they’ve always come up trumps ona large, busy list, you’re tending to accept it. (DJ D)

Trust and confidence had a clear impact on the nature of the proceedings.This depended on the embeddedness of the processes of routinization andsimplification. For example, in some courts, it was apparent from our obser-vations that certain judges would be less likely to give lengthy considerationto the evidence of certain, usually local authority, repeat-player claimants:

They’re all very well geared to doing it and they know what they’re doing. Andthe paperwork’s normally, well, I would expect the paperwork to be in order.So to be quite honest, I just check that there’s a court file and there’s been, say,a notice served and everything. I don’t make a big thing about checking all thepaperwork. To be quite honest, if we had to check all that meticulously, wewouldn’t be able to list six or seven per half an hour. (DJ V)

This process of simplification acted as a comfort blanket, enabling DJs to feelconfident that formalities had been complied with, without the need tocheck. Further, they felt that they did not necessarily have to press thelandlord for further information or believed that they were being excludedby the claimant from some information about the defendant. Such processesdid not necessarily change the decision; they just made it easier and quicker.

Much of this ground has, of course, been covered by Galanter (1974) andothers. However, although longevity creates ‘repeat players’, our data gener-ally suggest that this is not always as influential as it might have been. Therewere a variety of reasons for this. First, certain DJs operated ‘occupier-first’identities, whereas others were more inclined to favour landlords. Thispredisposition was an important determinant on the result (see also Lempert,1989). Second, DJs operated an informal hierarchy of repeat players, depend-ing on the quality of their advocacy. These hierarchies might be developedby reference to the views of other DJs in the court. Third, although therewere opportunities for clients ‘to develop facilitative informal relations withinstitutional incumbents’ (Galanter, 1974: 99), DJs tended to avoid suchinteractions. Fourth, landlords were not ‘playing for rules’ (Galanter, 1974:100), for they probably recognized that the rules, or lack of them, came frompractical experience of a particular DJ. They might seek to appeal at which

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point they play for rules – as happened to one DJ in our study – but gener-ally, our study concerned low-level decision making.

THE SOCIAL

A further simplification, although one with multiple conflicting identities,concerned the ‘social’ in ‘social housing’. DJs acted out their version of thesocial in possession proceedings, which could be a powerful driver in theirwork. Social landlord cases were treated differently from private renting andmortgage possession cases. In some courts, there were social landlordpossession ‘days’, partly because of the sheer numbers and partly because theprinciples were different from the private sector. Our DJ interviewees clearlymarked out social landlord cases as different. For example, it was said thatsocial landlords should lean in favour of the tenant, should not bringproceedings where housing benefit was at issue, or should not apply for amandatory possession order. For some of our interviewees there was a clearlink made between the trust they placed in the landlord and the social natureof that landlord.

There were three more general reasons given for treating social landlordcases differently. First, there was a tension between the contractual entitle-ment to rent and social landlordism. This tension was expressed by DJ Pwhen discussing the factors taken into account in these cases: ‘It’s socialhousing, it is a contract. It cuts both ways. The tenant has got to realize he’sprobably got an easy landlord. He’s got to do something to help.’ Differentelements within this binary might be emphasized at different times. Forexample, two interviewees drew upon the contractual duty to pay rent whengiving feedback on their decision to the occupier, as part of a tactic to scarethe tenant into paying their rent in the future.

Second, our interviewees expressed concern about the non-paying occupier’srights against the needs of others on the waiting list for social housing. ForDJ W, this was a ‘subsidiary consideration’ and ‘it’s just my slight concernthat perhaps I should be more bullish . . . particularly with the more persist-ent defaulters’. On the other hand, DJ U would ask of some occupiers,

Look, if you’ve chosen not to pay [the rent] then why do you expect the courtto help you now? If there’s a lot of people screaming out for accommodation,willing to pay for it, why should I give priority to people who are not preparedto do so? Not are unable to do so, but not prepared to.

Again, this factor could be deployed at different parts of the process and asa scare tactic. On the other hand, this factor could favour the occupier. Thus,for example, it was said by DJ I that if you evict a mother and her children,you would be creating more problems in society.

Third, it was said that, where tenants of social landlords were evicted, theproblem was that the social landlord would be required to rehouse the tenantat some considerable cost. Although some interviewees recognized this would

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be unlikely, others raised concerns over the costs of rehousing, using this asa technique to deny possession to a social landlord:

But the local authority is really the end of the line in terms of housing. Andthey’re gonna be the ones that pick up the pieces when somebody presents witha priority need. So I think that’s why, I suppose, I take a slightly different, youknow, I say, ‘Look, hang on, you know, where’s this family going to go? You’regonna have to pick up the pieces anyway.’ (DJ H)

THE WORTHY OCCUPIER

Our sample DJs used a spectrum of occupier worthiness. At one end, all occu-piers were worthy because this was social housing and deviant behaviour wastherefore forgivable; at the other extreme, the contract was sovereign andits breach unforgivable. Generally, the construction of the worthy occupierwas in tune with neo-liberal concerns broadly coalescing around governingunderstandings of responsibility. A worthy occupier, then, was a worthyconsumer; those unable to act as consumers – the can’t pay – might also beworthy. On the other hand, the unworthy were the ‘won’t pay’ brigade, the‘anti-consumer’. This latter category might also include those occupiers whoclaimed that they had completed housing-benefit application forms, but werenot trusted by the DJ – the ‘suspicious’ or ‘lazy’. DJ R described this divisionas follows:

One of my guiding principles, is I look to see to what extent the tenant hashelped him or herself or is able to help him or herself and, if they are able tohelp themselves and do absolutely nothing to help themselves, then I don’t seewhy the court should help them, frankly.

ATTENDANCE One way in which to determine which category the occupierfell, according to our sample DJs, was whether the occupier attended theproceedings. There was a paradox in this criterion. DJs knew that they wouldbe unable to service their case list if all clients attended and the list wasconstructed to reflect that; on the other hand, it was only the attenders whocould be worthy. Indeed, the sheer physical presence of the occupier in thecourt room might be effectively denied (see below) or might have a sufficientpsychological effect on the DJ to alter the result. Attendance at court mightsignify worthiness because it might be read as respect for the court as well aswillingness to pay:

They’re clearly taking the proceedings seriously and they’re concerned abouttheir position and they want to do something to resolve the problem. I’malways reasonably happy to try to help people who are prepared to help them-selves. (DJ I)

This latter point about client failure is what Lipsky (1980) refers to as a ‘mostfamiliar syndrome of private reconceptions of clients [involving] locating

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responsibility for client difficulties’ (p. 152). DJs knew that housing benefitadministration was a mess; they knew that the forms are (at best) difficult tocomplete, regularly lost by the bureaucracy, and housing benefit was oftenwell overdue; and, without that benefit, housing debt was likely to ensuepretty much as a matter of course. Every DJ discussed this at length in ourinterviews. However, some client-occupiers must be blamed because that‘absolves the helper from blame’ (p. 153). A dividing process was required:

Having said that, you do get people who do not co-operate with the housingbenefit people . . . a lot of these people just sort of put it behind the clock onthe mantelpiece and don’t face up to actually getting hold of the informationand sorting it. So if I find that they just haven’t bloody well bothered to gettheir act together, that will count against them as far as I’m concerned. (DJ G)

CAN’T PAY, WON’T PAY The binary between ‘can’t pay’ and ‘won’t pay’ is areflection of the divide between the deserving and undeserving poor (Dominyand Kempson, 2003). Rooting out the fraudulent was part of the possessionsprocess, institutionalized within the system and tied in with the prevailingconcern about welfare fraud. We must sort out the needy from the feckless(see Golding and Middleton, 1982):

It’s fair to say that a lot of these people, they will fall into two categories: eitherthey’re just feckless and irresponsible, they choose not to pay the rent andthey’ve got it coming to them or they can’t . . . they have problems, you know,often around drugs or alcohol, unemployment or illness. (DJ J)

This division was drawn often by reference to a ‘gut feeling’ about the client-occupier, which meant that their attendance was also double-edged. On theone hand, attendance was beneficial, but, on the other, it might lead to theDJ taking against them:

You can usually tell people who are, who genuinely had a problem which hasn’treally been much of their own doing. And then you can also tend to pick upon those people who’ve had a problem, but a lot of it is brought about by theirown doing as well as maybe housing benefit. (DJ T)

MAKING UP THE HOUSEHOLD Certain household characteristics also affectedthe classification process. Gender, children, and vulnerable persons wereoften differently treated. For example, single females might be treated betterthan single males, who were regarded by many in our sample as more likelyto be able to find alternative accommodation. The existence of children orvulnerable persons (including those with language difficulties) in a householdsubject to possession proceedings might well be an overriding factor againstpossession being granted. DJs clearly found it hard to deal with possessioncases involving children (especially where the occupier brought their childrento court). It was not uncommon, for example, for DJs to explain their hesi-tation to making outright orders for possession in emotive terms, reflectingon their personal experience and world view.

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Paternalism is a structuring discourse, which occasionally breaks free fromits shackles of silence. For example, it operated when the DJ gave the occupiera telling-off, or openly compared the occupier’s status with other needyhouseholds. What DJs said, the respect with which they treated occupiers,had ‘implications for citizens’ views of themselves’; like being stopped by thepolice, occupiers discovered through their interactions with DJs ‘whetherthey are or are not the kind of person to whom respect is normally granted’(Lipsky, 1980: 66). DJs signalled this most clearly in their explanations tooccupiers about the orders they were making. This was where DJs sought toadopt the position of the client, in order to find the words to explain the legaloutcome. DJs talked of having a ‘patter’, a routine description of this outcome,which might or might not have a moral sting, and which might be describedas a practice of speaking power. It provided an opportunity to the DJ to offer‘one last chance’ and thus present their actions as benign (Lipsky, 1980: 119).The set patter might extend, for example, from emphasizing the power of thecontract to emphasizing the anti-feckless role of the client-occupier:

I explain clearly and I suppose I might say, against myself, dogmatically, thatas long as they make, continue to make the payments week out, week in, as afirst priority, first charge on their income, they will be secure in their tenancy.I don’t know if I use the word secure but they will, they will not face eviction.But that if they fail to make the payments, they will face eviction and I do thatnormally in quite strong language. Except where it’s a tenant who can’t takethat, you know, who’s going to, who’s vulnerable. Then I explain it in terms asI would explain it to my grandmother, but, but because I feel that in doing thatin strong terms it reinforces the order and when they get it and that really it’sfor their own good. That, that’s the way I look at it because you know, it is fortheir own good to make the payments week in and week out as a first priorityon their income. (DJ L)

ROUTINES OF SIMPLIFICATION: RUBBER-STAMPING AGREEMENTS

Lipsky (1980) asserts that street-level bureaucrats sometimes have to acceptthe judgment of others, ‘who are assumed to know their jobs and are chargedwith responsibility for making appropriate assessment in their own work’(p. 130). In our study, DJs regularly accepted the judgments made byclaimant landlords. This is problematic, according to Lipsky, because it maysubvert public policy; in this case, it subverts the policy that DJs shouldmake the decision as a (supposed) neutral arbiter (cf. Moorhead’s article inthis issue). Additionally, that pre-decision is made by a different street-levelbureaucrat working through their own ‘decision-pressures’ (Lipsky, 1980:131). In this case, the social landlord effectively made the decision workingwithin the constraints identified earlier. Lipsky refers to this process, notunnaturally, as ‘rubber stamping’ ‘although [it] is often more complicatedthan this pejorative label implies’ (p. 129). Rubber stamping is, as Lipskyobserves, a perfectly rational way of processing and controlling significantcaseloads.

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In our research, negotiated agreements were very much conducted ‘in theshadow of the law’ – in the courtroom itself when the occupier attended, orat an earlier stage in the process. DJs recognized that pre-agreements were asignificant cause for the non-attendance of occupiers at court. We did notobserve that pre-agreement social process although noted that they werewelcomed by the DJs. However, where the occupier attended court, ourobservation data combined with interview data provided some insight intothis bargaining process. The DJ was absent from the pre-agreement process– their courtroom was empty other than the DJ themselves (or they hadreturned to their chambers).

Lipsky (1980) alerts us to three important controlling factors of this process:the group appointment, space, and client isolation. Taking each in turn, thegroup appointment is not only bureaucratically convenient but also generatesan expectation of service level ‘and taken as a sign that the agency is unlikelyto be responsive, or that the problem is unlikely to yield to assistance’ (p. 96).As Sarat (1990: 347–8) notes, ‘power defines whose time is valued and whosetime is valueless’.

The group appointment also ensured that landlords (who often hadresponsibility for multiple hearings in the session) and occupiers congregatedin the same waiting space at the same time. Their ‘meeting’ might be facili-tated by court staff. The arrangement of the waiting space might also bedesigned to facilitate agreement. Thus, for example, in West Country court, aculture of settlement was encouraged, not only through the DJ’s handling ofthe proceedings, but also within the general setting of the court. Space was afactor in controlling clients, separate (private) areas were utilized, reinforcingthe need for agreement, ‘splicing’ the legal, social and spatial together.

Waiting areas provided a potentially synoptic space, reinforcing occupierisolation. Such isolation might be overcome by seeking advice from a dutydesk solicitor or advocate. However, for example in a London court, meetingstook place between clients and such workers in the public space of the waitingarea; and the content of those meetings could be overheard. Workers operatedin a highly stretched environment, with lengthy queues of occupiers waitingfor their (public) consultation. The worker knew that the DJ was waiting forthem (the DJ might also send a court usher out to find out how much longerthey were likely to be).

Landlord representatives were generally housing officers themselves, andwere rarely legally qualified – a recognition that the proceedings were notnecessarily designed to be adversarial, but to facilitate settlement. DJs, forexample, recognized that housing officers were in a better position to nego-tiate settlements whereas lawyers might be more prepared for conflict (cf.Mulcahy in this issue): ‘There’s more opportunity for the housing officer totalk to the tenant at court and, you know, get to the bottom of what’s goingon, and try and explain things’ (DJ L).

This negotiation/settlement process was institutionalized in Northern 2court, in respect of the largest client-landlord’s possession cases. It wasexpected that occupiers and this landlord would meet at the court and make

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an agreement. The agreement would then be presented to the court and invari-ably accepted. This was a rational strategy, as DJ F explained:

The reason we can get through a very heavy list is that they go and talk toeveryone who’s here and I would have said in 80 per cent or 90 per cent of casesthey’ll come in saying, ‘We’ve talked to so-and-so and she’s agreed to pay this,and we’re happy to have a suspended order on that basis.’ So there are very fewreally, where you end up with the tenant coming in.

This strategy depended on high levels of trust and confidence in that landlord,and led to a significant correlation between landlord requests and outcomes.As Lipsky (1980) suggests, this process was problematic from a public policyperspective. First, landlords were treated differently by this process; second,outcomes were clearly affected and were more negative than in other locales;third, there was no duty desk scheme at this court and clients were usuallyunrepresented (although there was a money advice worker); fourth, require-ments of due process were often overridden, as the focus was on the agree-ment as opposed to the proper serving of documents.

We might adopt a counter-tactic that Lipsky (1980) uses, however, toquestion why, if settlement was such a natural client-processing technique,some DJs occasionally sought to reopen agreements made by the parties. Thiswas a cause of considerable friction noted by landlord participants in our focusgroups. A number of reasons might be offered – mistrust of the landlord; anunrealistic offer by an occupier accepted by the landlord; or a recognition ofthe obvious inequality in that relationship. DJ F, for example, would alwaysquestion agreements despite the size of the list and the friction it caused:

People get really uppity with me about it as well, but I say, ‘I don’t care, I don’twant to see this person back in court. It’s far better that there’s an order thatthey can comply with and you can get your money, even though it comes in abit more slowly.’ I always question it, yeah.

CONCLUSION

In this article we have made use of the insightful, nuanced analysis presentedby Lipsky (1980) over 25 years ago to frame our data. Lipsky’s project, todefine the dilemmas of street-level bureaucrats, has proved useful in seekingto understand the working practices of our sample DJ. As Lipsky pointed out,street-level bureaucrats are policy makers, whether it be implicit (un/subtlepersuasion to agree) or explicit (through training, for example). But it is morecomplex than this. The inter-relationship between policy making and the useof discretion can be identified in two conflicting ways. Policy making is notonly a method of constraining their discretion – for example, the informallimits many DJs had below which they would not consider making an order– but DJs also have the power to undermine policies (rules) by using ordenying their discretion. It is this policy-making role which enables the DJto accept or deny the claim neutrally. Mladenka (1989: 558) refers to these

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as ‘decision rules’ which ‘appear reasonable and rational and can be used todefend decisions about the distribution of scarce service resources’). AsLipsky (1980) points out, street-level bureaucrats are able to subvert policyby denying their own discretion in order to protect themselves, both fromblame and having to take difficult decisions. This appears contradictory, butis consistent with Lipsky’s approach and the fact that ‘ultimately, the(se)contradictory tendencies in street level bureaucracies cannot be understoodwithout examining their role in society’ (Hudson, 1989: 401).

We have been able to demonstrate how a series of taken-for-grantedassumptions infiltrate and determine these legal processes. In order to copewith their caseload, DJs produce principles and rules from their discretion.They determine not only who can be trusted but also the effect of that truston their everyday practice. They develop criteria of worthiness, which areinfluenced by their ideological frame. As Hawkins (2002) puts it, ‘frames areshaped by a variety of features: image and belief, views about good and bad,right and wrong, and so on. They instruct a decision-maker how to under-stand a case, a problem, or a person’ (p. 53). Trust also impacts on the regularpractice of rubber-stamping agreements, an important, often pre-determining,practice in rent-arrears possession cases. Again, Lipsky’s work enables us toappreciate not only why rubber stamping occurs but also its underpinningassumptions. In terms of the understanding of judgecraft, what this articleoffers is a corrective to the view that judging involves conscious use ofexpertise and skill.

There is a tendency for those following Lipsky’s work to generalize fromtheir sample data. Street-level bureaucrats generally share similar pressuresand similar ranges of understandings. Such generalizations in those studiesmay be warranted but we have strongly resisted such a temptation. Our claimsare modest and related solely to our data set. Indeed, we have carefully setout the limitations in our methodology (and, thus, offered scope for furtherresearch). Even so, we would argue that there is scope within socio-legalstudies for better use of the work of Lipsky; that Lipsky should be regardedas responsible for something more than just the street-level bureaucrat label.

Although a number of studies have suggested that the street-level bureau-cracy thesis needs rethinking in the new managerial world (see the discussionin Evans and Harris, 2004), DJs are largely free of the influence of NewPublic Management techniques. There are no performance indicators beyondclearing the day’s case list. There are no real sanctions for bad performance,beyond appeal and appeal is an irregular occurrence. They are not ‘screen-level’ nor ‘system-level’, but the old-fashioned variety of ‘street-level’ bureau-crats (see Bovens and Zouridis, 2002).

They have routines of simplification such that the divide between ‘legalistic’and ‘informal’ processes (Lempert, 1989) became both uncertain and produc-tive. While rent-arrears possession cases are legalistic and some DJs doapproach their task from a formalist perspective, nevertheless there are differ-ent levels of informality which impact on the way in which they mightexercise their discretion. This suggests that the range of legalism–informalism

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is not so much a continuum as an interactive process which takes place overtime (or, rather, was described to us as such).

In particular, as street-level bureaucrats ourselves, Lipsky assists us withempathizing with the DJs in our study, if not sympathizing with the predica-ment in which they find themselves. We are able to explain away some of themore tendentious approaches and strategies by naturalizing them through anexamination of context. We could not say that we found some approachestasteful (to say the least), nor that we approved of them. Indeed, sitting in acourtroom observing an occupier being told off by somebody who clearlyrevels in the role is an experience to make even the hardiest empiricist squirm.One of our interviewees, for example, said that he would warn some occu-piers of the dire consequence of buying ‘those 10 Rothmans [cigarettes]’ andthus being unable to pay their rent. What Lipsky offers is a way of seekingto appreciate the pressures of just doing the job, making connections fromgut feelings about people, which might be wrong or simplistic, but whichappeal to their innate understandings of the world. It enables a certainposition of neutrality in the process of data analysis and reflection on inter-views or observation. Resort may be had to Lipsky when one is trying toexplain social processes that are outrageous from the researcher’s perspective.On one view, it enables us to see the world from our interviewees’ perspec-tive and thus stay faithful to our data; on another view, it hems in our ownworld view and offers a neutral, legitimating, understanding analysis. This is,from our perspective, a limit of Lipsky’s approach, although others may seeit as a strength.

NOTES

The research reported here was funded by the Department for Constitutional Affairs.We are grateful for their support. It was published as Hunter et al. (2005). The viewsexpressed in this article do not represent the views of the Department. Dave Cowanpresented an earlier version at the Law and Society Association meeting in 2004 – hisattendance at that meeting was made possible by the generous assistance of the BritishAcademy. We are grateful to Richard Moorhead and Richard Young for their commentson an earlier draft. We are also grateful to the other members of the research teamwho not only offered us the opportunity to develop this article in our own name butalso generously supported us throughout the task.

1. The term ‘social housing’ here denotes housing provided by a public body, suchas a local authority, or a publicly registered and funded organisation termed‘Registered Social Landlord’ (‘RSL’), sometimes known as ‘housing association’.

2. In this sense, there has been a double neglect: first, as Hudson (1989) hasobserved, Lipsky’s work itself has been neglected but, second, the work that hasbeen done has been what might be termed more traditional street-level bureau-crats, such as police officers, social workers, housing officers and the like.

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CASE CITED

Cumming v Danson [1942] 2 All ER 653, 655

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