Patrice Fabien responds to Chris Dun’s recent blog about changes to regulation.
Chris Dun, in his blog of July 5, asks whether the coming changes to the current regulatory regime exercised by the Scottish Housing Regulator over RSLs, following the intervention of the ONS, is a good thing or not. In so doing he cautions against “light touch regulation” as it may “not be viewed positively by funders or investors”.
His concerns are justified but, as well as knowing that the perspective depends on who is looking at RSLs and for what purpose, there are a couple of matters that need correction; or clarification.
Chris Dun reminds us that we need to view the proposed changes “in a wider context”. That is the right approach – but of course it all depends on how wide we want the context to be; or how wide we can make it.
RSLs are statutory creatures upon whom a raft of legal regimes, over time, have been imposed and housing associations, as they were originally named, were very different entities. Borrowing a terminology one comes across in many areas, there has been an element of “mission creep” – mostly through housing legislation (going as far as giving tenants, not just members, a say in RSLs merging); but also through many other legal “encroachments”.
By now we have EU Procurement Regulations (as “augmented” by the recent Procurement Reform (Scotland) Act 2014), the applicability of State Aid (relevant in the context of grants), the Human Rights Act (in certain circumstances), the Environmental Information (Scotland) Regulations 2004 (thanks to case law), the consumer credit legislation (some contracts may trigger its application), the Scottish Public Services Ombudsman, to name but a few – and given that over 90% of RSLs are charities, the Office of the Scottish Charity Regulator. On the horizon, we also now have the Freedom of Information (Scotland) Act.
The wider context, and given that various parties – the Scottish Government, MSPs, lenders, owner occupiers, local authorities, and many others – all want a piece of the action, it would hardly be surprising if RSLs feel under siege and may indeed welcome the ONS intervention, however limited or focussed.
The debate we need to have is not whether “light touch regulation” is good or bad for some interested parties. Rather, we need to confront the issues and ask ourselves what we want RSLs to be and do, for whom and how. And the key parties to contribute to the debate would be, in the first instance, RSLs themselves. The latest report by Glasgow and West of Scotland Forum of Housing Associations, “Minding the Gap: A snapshot of Community Controlled Housing Associations’ “role creep” activities”, is therefore timely.
- Patrice Fabien is a partner in the social housing unit at BTO Solicitors LLP advising a wide range of registered social landlords. bto.co.uk