Extending coverage of the Freedom of Information Act to Registered Social Landlords: interim report

Key Issues

As the consultation paper noted, there has been considerable discussion around extending Freedom of Information legislation to RSLs since before the legislation originally came into force in 2005.

For many respondents, the question was one of principle - that of establishing equity with local authority landlords. In this respect, one response considered that RSLs were effectively a 'proxy' local authority housing department with another referring to the 'unjust imbalance' in the lack of RSL public accountability in comparison with local authorities. In other words, non local authority RSL tenants should have the same information access rights as local authority tenants.

However, for others, including many RSLs, it was a question of practical effect, both in terms of business impact and whether more information would be made available.

Function

Central to the issue of extending coverage is 'function' - that the function undertaken by a public authority becoming subject to the Act must be of a public nature. While 'functions of a public nature' is not defined in the legislation the consultation paper set out a number of criteria which could contribute to defining the term.

Many of the criteria put forward were reflected in consultation responses, such as the extent of public funding, the statutory duties placed on RSLs and the degree of regulation and oversight. No specific weighting of the criteria was proposed and the full range of factors will be taken into consideration prior to a decision on extending coverage being made.

Multiple responses noted the fact that RSLs, both historically and currently, received significant amounts of public funding, for example, grants to build in order to meet Scottish Government affordable housing targets. Therefore, in the interests in effect of 'following the public pound' RSLs should be covered by the Act. Others, such as Falkirk Council, identified particular statutory functions undertaken by RSLs - such as homelessness obligations, offering Scottish Secure Tenancies and consulting tenants on affordable rents.

A number of responses including from individuals simply considered that the provision of social housing - as the overarching and core 'public' function of RSLs - was sufficient justification in itself for extending the Act to RSLs.

Many responses also drew parallels with local authority housing provision - the Association of Local Authority Housing Officers noting that RSL tenants signed the same form as those renting from local authorities. There was therefore no justification for offering RSL tenants fewer rights in respect of access to information from their landlords than those renting from Councils.

Some responses qualified support for extension. The Scottish Council for Voluntary Organisations ( SCVO) supported extension on the basis of specific functions of a public nature not to all activities. A similar point was made by the Scottish Federation of Housing Associations ( SFHA) in stating an order would need to focus specifically on housing services of a public nature only. Glasgow and West of Scotland Forum of Housing Associations ( GWSF) also considered that on the fringes there might be some functions undertaken by an RSL not appropriate for inclusion. As an example, GWSF suggested it would not be appropriate to include a small factoring service run by an RSL. This would maintain consistency with factoring services outwith the legislation and also because of the robust legislative obligations already around factoring services and the type and quality of information which must be provided to owners.

We note that a number of other responses also made reference to factoring. For example, Wyndford Tenants Association supported including RSL property factors within scope - highlighting situations where a property factor was compulsory with the RSL being able to decide who the factor should be. The Association suggested this in effect created a monopoly (the effective monopoly of service provision by an RSL also being an issue for another respondee). The Glasgow Homeowners' Campaign also considered factoring services should be within the terms of an order as their management fees and surpluses etc were used for public purposes - such as community play areas. A further response commented that factors should be accountable as any other kind of organisation.

Care functions were also identified as an issue, for example, Blackwood Homes and Care considered that if the Act were extended a 'level playing field' should be created to ensure that any organisation commissioned to provide a care service was also within scope. This would avoid any organisation providing both housing and care being commercially disadvantaged compared to other private care providers.

In contrast to the tenor of most other responses and while supporting the principle of extending freedom of information to RSLs, Wheatley Housing Group ( WHG) expressly did not agree with the assessment that RSLs undertook functions of a public nature. Reasons for this included the inconsistency of arguing that the provision of Scottish Secure Tenancies justified the conclusion that RSLs undertook statutory functions but that no equivalent argument was made in respect of Scottish Private Residential Tenancies; that public funding was not the dominant source of RSL income; that in terms of social role RSLs should be considered as partners of government rather than agents of government, and that regulation should be seen as being in the interests of tenants rather than in context of state control over an RSL.

Some other responses also noted that, even if providing a public service, RSLs were private companies taking commercial decisions. Another, opposed to extending coverage, considered that RSLs were responsible to their tenants and service users rather than residents and taxpayers.

Clearly, the core function of RSLs is the provision of social housing - as acknowledged in a significant number of consultation responses. However, we also note reference to other activities - primarily the provision of care and factoring services - in some responses.

Any order must describe the functions within its scope and it is clearly important that its terms are easily understood - in the interests of potential requestors and RSLs as well as the Scottish Information Commissioner who has responsibility for both promoting and enforcing the legislation. Indeed, the consultation response from the Scottish Information Commissioner noted difficulties arising around descriptions used in previous such orders.

Given issues raised around certain functions including whether - and how - they might be included within scope of an order, as well as in the interests of ensuring that any order has as much clarity as possible, we consider it necessary to undertake further work on the terms and scope of an order, including stakeholder engagement.

Subsidiaries

The consultation exercise did not include proposals to extend the Act to RSL subsidiaries (other than those RSLs which were themselves subsidiaries of a parent RSL). From Scottish Housing Regulator data, approximately half of RSLs have a subsidiary, with a small number having more than one. These subsidiaries are responsible for performing a range of functions and services, for example, factoring services, provision of Mid-Market Rent ( MMR) housing (which must be provided via a subsidiary), community workshops, nurseries etc.

The consultation took the view that subsidiaries, as effectively commercial organisations undertaking essentially 'private' activities in competition with the private sector - and not directly related to their core housing activities and statutory functions - would not be appropriate to include within scope of the proposed order.

However, views were invited in terms of whether their functions should be considered to be 'of a public nature', assessed against the factors set out in the consultation paper.

Few comments were received making specific reference to subsidiaries. GWSF noted that a significant majority of their members agreed that the activities of housing association subsidiaries should be excluded from any extension of FOI on the grounds that they were separate organisations undertaking mainly commercial activities and which have separate boards. GWSF specifically identified MMR and factoring as functions to be excluded from an order - the former being designed to be more in competition with the private rented sector than the social rented sector and the latter due to the robust legislative obligations around factoring services and the type and quality of information which must be provided to owners.

However, responses from both the Campaign for Freedom of Information in Scotland ( CFoIS) and the James Reid Foundation ( JRF) considered that too little information was available on which to make an informed decision. The Scottish Information Commissioner also expressed concern about whether RSLs would hold information about subsidiaries in which the public had an interest and whether sufficient safeguard existed ensuring information rights continued to apply in the event of public functions being delivered by means of subsidiaries.

We note the comments raised in respect of RSL subsidiaries - including by those who considered it not possible to come to an informed opinion. While the focus of this consultation remains on RSLs, as part of further consideration of responses we also intend to explore wider issues concerning the role and functions of RSL subsidiaries - including any potential impact regarding obligations under the Environmental Information (Scotland) Regulations ( EIRs) in the event of the Act being extended to RSLs.

Accessing Information

Similarly to previous experience, few responses to the current consultation provided evidence of difficulties in obtaining information from RSLs.

Shelter Scotland made reference to rare occasions where tenants were struggling to access information from their housing associations. The CFoIS in their response highlighted an instance where the Scottish Housing Regulator had intervened against an RSL - seeing this as an illustration of how an enforceable right to access information would have been of benefit to the wider community as well as individual tenants.

Conversely, many responses - particularly from RSLs - emphasised the open and transparent manner in which they operated - including 'in the spirit of the Act'. For example, Manor Estate Housing Association referenced the long and proud history in the RSL movement of stakeholder engagement, transparency and openness.

Several RSLs made specific reference to the Scottish Social Housing Charter ('the Charter'), Link Group noting that an open, transparent, regulated and highly scrutinised social housing sector already existed in Scotland - demonstrated by the very detailed statistical information submitted to the Scottish Housing Regulator. Shire Housing Association contended that there was no need to extend the Act, in part given the high levels of tenant satisfaction with the provision of information about decisions and services.

The Charter was also referenced, among others, by the Chartered Institute of Housing Scotland ( CIH Scotland) and GWSF, the latter confirming the importance to their members of making high quality, accessible information available, including through Charter performance.

GWSF also noted the joint publication in autumn 2016 of a Model Publication Framework - in the interests of promoting proactive publication and best practice. The Framework provides guidance for GWSF and SFHA members about the kinds of information it is recommended organisations proactively make available through their websites.

The response from Rural Stirling Housing Association suggested as an alternative to extending the Act that the Charter be revised to incorporate increased requirements relating to responsiveness to information requests.

Conversely, some responses, both from individuals and organisations, contended that voluntary codes or operating 'in the spirit of the Act' were not suitable alternatives to formal extension of the Act - and that without 'full rights' the Act's true purpose was not served. Indeed, one response considered that extension of the Act would encourage tenants to continue to engage with Tenant Participation.

Shelter Scotland acknowledged that RSLs returned a significant amount of information to the Scottish Housing Regulator and that many RSLs regularly published further information and documentation such as minutes and reports. However, Shelter also considered that the possibility of making an FOI request would promote good practice - without proving overly burdensome.

Similarly, while the Scottish Information Commissioner viewed the Charter favourably, her view was that it fell far short of the rights that exist under the Act in failing to preserve the general rights of any person, and the benefits of enforcement through an independent appeal route.

Regulation and Oversight

In addition to the scrutiny and enforcement role of the Scottish Housing Regulator, a number of responses observed that RSLs were subject to considerable additional regulation and oversight.

Shire Housing Association noted their compliance with the Scottish Public Service Ombudsman ( SPSO) model approach to service complaints - including complaints concerning dissatisfaction with the quality of information shared with tenants. Several references (primarily put forward as a reason not to extend coverage) were also made to other regulation, for example, by the Office of the Scottish Charity Regulator ( OSCR) and the Care Inspectorate.

In referencing OSCR and the SPSO, Rural Stirling Housing Association suggested that using existing regulatory arrangements for justifying extension of the Act actually demonstrated that extension was not necessary. Similar emphasis on the breadth and extent of existing regulation was also made by, among others, Port of Leith Housing Association and SFHA.

Reclassification

The recent reclassification by the Office for National Statistics ( ONS) of RSLs as public non-financial corporations was raised in several responses - particularly in context of discussion around 'function'.

For example, Link Group noted that the planned reversal of the ONS reclassification of RSLs as public bodies was liable to cause confusion. Similarly, Shire Housing Association considered it to be somewhat confusing that, for the purposes of the Act, RSLs could be regarded as 'public bodies' while at the same time legislating to classify them as 'private' organisations. The SFHA also highlighted the inherent contradiction in simultaneously seeking to define RSLs as 'public authorities' for the purposes of Freedom of Information ( FoI) while seeking to redefine RSLs as private for the purposes of ONS classification.

The review of the status of RSLs was undertaken to establish whether RSLs and housing associations (alongside those in Wales and Northern Ireland) should continue to be recorded as private non-financial corporations in ONS economic statistics. This followed a similar review into private registered providers ( PRPs) of social housing in England.

As ONS noted, the review's outcome was a statistical matter without a direct bearing on the management structure, ownership or legal status of the organisations in question. However, in order to avoid confusion on the public/private status of RSLs - and confirming their status as private entities - as stated in the consultation paper it is the Scottish Government's intention to bring forward a Bill to this effect. It is currently anticipated that this Bill will be introduced in September.

Given the clear intention of the Scottish Government to confirm by means of legislation the private status of RSLs we do not consider the proposal to extend Freedom of Information legislation to RSLs to cast any further doubt on the status of RSLs as private bodies.

Moreover, while we understand the potential for confusion on the question of public functions being undertaken by private bodies we would observe that this is not an uncommon circumstance in legislation. For example, as noted by the Scottish Information Commissioner, RSLs are subject to investigation by the SPSO. And as organisations recognised as performing public functions, RSLs are also required to comply with the Human Rights Act 1998.

Section 4 Order

We note the suggestion from the Scottish Information Commissioner that bringing RSLs within scope of the Act by means of an order under section 4 of the legislation 'would be a more nimble route'.

However, the purpose of section 4 is to add to schedule 1 of the Act bodies that are either a part of the Scottish Administration or a Scottish public authority with mixed functions or no reserved functions.

We do not consider that these criteria apply to RSLs - particularly given the specific legislative intention to confirm their private status.

Business and Regulatory Impact

A full Business and Regulatory Impact Assessment ( BRIA) (along with other associated impact assessments) will be published at the same time as the final response to the consultation - taking into account issues raised in the ' BRIA' section of the consultation paper.

Clearly, the practical impact of extension raises significant concerns for RSLs. These relate both to ensuring that sufficient and appropriate training, systems and guidance etc are in place from day one of the Act coming into effect and also the financial cost of extension. SFHA summarised the key concern as being the lack of understanding of what the impact on RSLs might be - noting that any increased costs associated would have to be met through tenants' rents.

The direct correlation between the costs of extending coverage being met from increased tenants' rents was made in several responses. For example, CIH Scotland noted that while information could be requested by any member of the public this was ultimately resourced by tenants through rental income. Blackwood Homes and Care considered that, without any budget for implementation, costs would be passed on to their customers through rents.

Several RSLs made similar points with Weslo Housing Management noting the pressure to provide value for money and enhanced services at a time of reduced funding while keeping rents affordable. North View Housing Association in their response commented that, while tenants would meet the RSLs' costs of extending coverage, any increase in funding to the Scottish Information Commissioner would be met by the taxpayer.

A number of responses discussed the potential costs of responding to information requests with some referencing research commissioned by SFHA and GWSF looking at the potential impact of extension. CIH Scotland noted the estimate (based on local authority data) of housing related requests in the region of 60-90 per year. In cross-referencing their research with Scottish Government cost data, SFHA suggested that estimated annual costs for RSLs could be up to £20,790 (without taking into consideration training, setting up systems etc.).

Several other respondees also offered estimated costs for complying with the Act, for example, North View Housing Association estimated 'start up' costs between £10,000 - £15,000 and thereafter costs around £3,600 per annum. Based on the research, Weslo Housing Management suggested the sector might incur costs of £2 million. Wheatley Housing Group, for planning purposes, considered costs would increase by between £100,000 and £200,000 (noting this was equivalent to between £2 and £4 per household).

However, a number of responses - in support of extending coverage - cited reasons why becoming subject to the Act might not be as significant a change of culture or practice as some anticipated. For example, as noted by the CFoIS, RSLs are already covered by the EIRs. They should therefore have processes in place to identify requests that should be answered under the EIRs. A number of respondents also commented that RSLs would respond to requests for information as part of ordinary business - there would therefore be little or no work to do to make themselves ready for FOI coverage.

Indeed, as previously noted, several respondents referred to RSLs operating 'in the spirit of FOI' though, as SCVO observed, not all provided information as readily as others. GWSF also observed that while many associations had developed an as open as possible approach to making information available this was a far cry from the rigorous bureaucracy of complying with such things as the Model Publication Scheme and submitting quarterly returns to the Scottish Information Commissioner.

Reference is also made here again to the Model Publication Framework which in many respects mirrors the Model Publication Scheme of the Scottish Information Commissioner. As such, while the Framework is advisory, as noted by the Commissioner, compliance with it is likely to go some considerable way in satisfying a central requirement of the legislation. Similarly, Weslo Housing Association, considered that adoption of the Framework could mitigate the number of requests made and assist in cost implications.

We also note that evidence from earlier orders extending coverage clearly suggests that adequate preparation is critical prior to an organisation becoming subject to Freedom of Information legislation. As is clear from the response from the Scottish Information Commissioner, in the event of the Act being extended to RSLs, the Commissioner's office anticipates putting in place, as before, a comprehensive training programme.

Given that RSLs will already be responding to information requests - including in terms of the EIRs, and that training and guidance will be in place prior to any order coming into effect, we consider that considerable reassurance can be provided to RSLs on the impact of extension.

However, given the clear concerns voiced by many RSLs, particularly on the financial costs of extension and the indirect - if not direct - impact on services and rents, this is one aspect of the proposed order where we consider further information is required.

Commencement

Given the importance of training and adequate preparation, it is clearly in all parties' interests to allow sufficient time ahead of the Act coming into force (the Commissioner considers nine months to be the minimum time required from the date that the order is approved).

The consultation paper proposed a commencement date of 1 April 2018. While the majority of responses considered this appropriate most of those from RSLs believed this to be an inadequate timescale - in part due to budgetary implications. Many of the RSLs favoured a later commencement date of 1 April 2019 in the event of an order being made as this would help in addressing concerns about financial and practical administrative considerations (including preparation for the General Data Protection Regulations in force from May 2018).

In further engaging with RSLs (and their representatives) on the proposals to extend coverage of the Act to RSLs, we will therefore include discussion on the optimum commencement date in the interests of as effective implementation as possible - for both organisation and applicant.