Freedom of Information: extension of coverage to registered social landlords - consultation response

Annex A - Consultation responses – key issues

Support for the proposals, as set out in the consultation paper, was received from a range of organisations. These included Sauchie and Fishcross Community Council, Dumfries and Galloway Council, Maxwellton Court Tenant Association and Regional Networks representing the views of tenants – with South East Scotland Regional Network noting their unanimous agreement that FOISA should be extended to cover the functions that are already subject to regulation by the SHR as well as to certain functions of RSL subsidiaries.

The Glasgow Homeowners' Campaign welcomed the proposal to extend FOISA to all housing associations and their factoring organisations considering the right to information to be a fundamental human right. This point was echoed in comments made by the Campaign for Freedom of Information in Scotland, which, while dismayed by the delay in designation, welcomed the simplicity of the order though noted insufficient clarity around which subsidiaries would be in scope. Support for the proposals, including the inclusion of subsidiaries, was also received from Unison Scotland who urged the Scottish Government to move quickly to explore whether certain organisations – or class of organisation – delivering health and social care functions, but currently not subject to the Act, should be brought within the scope of the legislation.

Support for the basic premise that tenants of RSLs should have the same rights to information as tenants of a local authority landlord came from Stirling Council (though the Council considered the inclusion of factoring service appeared unfair while acknowledging a number of local authorities provide such services).

The response of the Scottish Information Commissioner identified issues of clarity around drafting, specifically in respect of subsidiaries which, it was suggested, should be listed separately in the order. The Commissioner also noted issues around establishing a comprehensive list of RSL subsidiaries. While the proposed lead in time was considered sufficient, the Commissioner continued to be concerned about the impact of the Housing (Amendment) (Scotland) Bill and the potential confusion and uncertainty about RSLs being subject to the EIRs.

Almost half of the consultation responses received, representing the views of a considerable number of housing associations, endorsed the comments of the Glasgow and West of Scotland Forum of Housing Associations (GWSF). The GWSF specifically did not focus on the principle of extension but rather the functions intended to be within scope of the order. The GWSF noted the convenience of proposing coverage on the basis of those functions regulated by the SHR but saw no logic to this approach in relation to factoring given the strong legal rights factored owners now had. While welcoming the exclusion of care services the GWSF considered the reasons for the exclusion of care functions could also apply to factoring which was not a public service in the way that mainstream housing association landlord services were. The GWSF understood the reasoning behind including RSL subsidiaries within scope of the order but considered that all services relating purely to private housing or to private tenancies (as opposed to Scottish Secure Tenancies) should be excluded. The GWSF also confirmed that they understood the EIRs to continue to apply and that this was not a basis for bringing forward commencement – which should not be before October 2019.

Wheatley Housing Group (WHG) considered that the draft order went well beyond the stated policy intention of only extending FOISA to cover functions and services for which the Scottish Housing Regulator had existing regulatory responsibility. As currently drafted, the order could extend FOISA to all housing and related activities undertaken by connected bodies – including factoring, care and letting services. WHG noted that the Housing (Scotland) Act 2010 did not limit the definition of 'housing services' to services/activities and proposed the order be clarified to apply only to functions and activities of RSLs and connected bodies which specifically relate to Scottish Secure Tenancies – activities for which the SHR has regulatory responsibility. This, WHG considered, would bring the order into line with relevant case law in respect of the extent RSLs undertook functions of a public nature. Dependent on changes to the order, WHG proposed commencement from 1 April 2020.

The Scottish Federation of Housing Associations (SFHA)expressed concern about the wide scope of the order as drafted and in particular the proposed inclusion of RSL subsidiaries. The SFHA noted that subsidiaries were created to deliver non-core activities to protect the core activities and assets of the RSL – they were not set up to outsource the core functions of the RSL. The SFHA considered it inappropriate to extend FOISA to RSLs' commercial factoring services but not to large commercial factoring firms – considering that commercial factoring and care services did not satisfy the 'public nature test' of FOISA. The SFHA considered that 'housing activities' was a far too blanket, catch-all term theoretically covering everything that RSLs and their subsidiaries did and proposed that the order be redrafted so that it applied only to functions of a public nature – predominantly concerning services relating to the provision and management of Scottish Secure Tenancies and the development of properties for this purpose (i.e. as subject to regulation by the SHR).

In the annex to their response the SFHA further emphasised concerns regarding the breadth of the order and considered that, in terms of the factors used in an assessment of what constituted a function of a public nature, only certain functions in respect of homelessness and social letting would fall within scope. The response also considered that the Scottish Government's interpretation of what constituted 'functions of a public nature' differed significantly from human rights case law which suggested only core social housing functions would be considered as being of a public nature.

In opposing the extension of FOISA to RSLs, Castlehill Tenants' Organisation expressed concern that the proposal would have a detrimental effect on tenants, noting that council tenants were less satisfied with information they received from their landlords than RSL tenants and that RSL tenants already had the right to be consulted, knew their landlord was regulated by the SHR and had the right to complain to the Scottish Public Services Ombudsman.