Consultation on extending Freedom of Information to registered social landlords

Registered Social Landlords

An RSL is a housing association or housing cooperative that is registered with the Scottish Housing Regulator ( SHR). In general terms, RSLs are not-for-profit organisations that aim to provide good, affordable accommodation for people with a housing need.

The SHR is the independent regulator of RSLs and local authority housing services in Scotland. Its statutory objective is to:

"safeguard and promote the interests of current and future tenants of social landlords, people who are or may become homeless, and people who use housing services provided by registered social landlords and local authorities".

The SHR regulates social landlords to protect the interests of people who receive services from them. The SHR does this by assessing and reporting on:

• how social landlords are performing their housing services;
• RSLs' financial well-being;
• RSLs' standards of governance.

Currently, there are almost 160 non-local authority RSLs ^[5] . RSLs vary hugely in size - ranging from small organisations with under 100 units to those with tens of thousands of units. Many of them own and manage housing stock formerly owned and operated by local authorities. Some provide specialist accommodation for tenants with disabilities.

The proposal is to extend the Act to all RSLs, irrespective of size. We consider that a threshold based on a particular number of units operated by an RSL would be arbitrary and, inevitably, only extend access to information rights in respect of RSLs above the threshold.

Private bodies

RSLs are private bodies with potential extension of the Act to RSLs having no impact on their status as private bodies. The order-making power at section 5 of the Act is specifically intended to bring within the scope of freedom of information legislation organisations not considered to be public authorities - insofar as their functions are recognised as being 'of a public nature'.

In September 2016 the Office for National Statistics ( ONS) finished its review of the classification of RSLs and concluded that RSLs should be classified to the public sector in the national accounts. It reached its decision in view of the extent of some of the powers that the Regulator can exercise over RSLs (such as powers to appoint managers and board members to an RSL, and to consent to disposals of assets by an RSL and changes in an RSL's constitution). In announcing its decision, ONS noted that it did not affect the legal status of RSLs as private bodies.

A consequence of the classification is that all future net borrowing by RSLs would count as public expenditure by the Scottish Government. Because of that, the Government confirmed on the day of the ONS announcement that it would bring forward a Bill to adjust the powers of the Regulator over RSLs so that ONS could reclassify RSLs to the private sector once again. The Government expects to introduce this Bill in 2017.

Subsidiaries

We note that some RSLs operate subsidiaries responsible for undertaking a wide range of functions. The proposal in this consultation is to bring within the scope of the Act RSLs rather than their subsidiaries (other than those RSLs which are themselves subsidiaries of a parent RSL).

As indicated above, in order for bodies to be brought within scope of the Act they must be undertaking functions of a public nature. In terms of subsidiaries we do not consider that this is likely to be the case as subsidiaries are primarily created to operate commercially on the same basis as private companies providing similar services.

However, we acknowledge that exceptions may apply and welcome comment on the issue of RSL subsidiaries, for example, in terms of their functions, the extent these might be considered to be 'of a public nature' assessed against the factors set out in this consultation paper, as well as issues concerning their approach to openness and transparency.

We would note that, in the event of RSLs coming within scope of the Act, information held by the RSLs concerning their subsidiaries would also potentially be within scope - and therefore subject to information requests. In addition, as with any authority required to comply with Freedom of Information legislation, we would strongly encourage RSLs (if setting up subsidiaries or engaging with contractors) to consider the importance of maintaining information access rights, for example through contractual provisions.