FOI to apply to Registered Social Landlords from November 2019

Housing associations in Scotland will come under the Freedom of Information (FOI) Act from November this year, the Scottish Government has announced.

The move was outlined when an Order cited as the Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019 was published last week.

FOI to apply to Registered Social Landlords from November 2019

Subject to Parliamentary approval the Order will come into effect on 11 November 2019, with the government intending to review its impact after a year.

As proposed, any housing association function relating to Scottish Secure Tenancies (and Short SSTs) will be covered by the Bill. This means, for example, that repairs services will be covered regardless of whether they are provided by the housing association or a subsidiary.

Crucially, the legislation will not apply to factoring services, a position advocated by the Glasgow and West of Scotland Forum of Housing Associations (GWSF), the Scottish Federation of Housing Associations (SFHA) and Wheatley Group.

GWSF had argued that it would not be appropriate for housing association factoring services to be subject to FOI when private factoring services were not.

In its conclusions following consultation on the draft Order to extend the coverage of FOI legislation to registered social landlords and their subsidiaries, the Scottish Government said: “Both the SFHA and Wheatley Group raised concerns about the proposed breadth of the order, which, they felt at least theoretically, could capture everything done by both RSLs and RSL subsidiaries (irrespective of whether or not the Scottish Housing Regulator (SHR) exercised any regulatory responsibility).

“In noting that aligning the Order to functions regulated by the SHR might be ‘convenient’, GWSF considered that there was no particular logic to this in relation to a service such as factoring as this was not a public service unlike mainstream housing association landlord services.”

Governance and finance information provided to the Scottish Housing Regulator will also be covered.

The Scottish Government added: “As noted above, the premise of the proposed Order was to align designation and the statutory right of access to information to the oversight and regulatory role of the SHR, as set out in section 3 of the Housing (Scotland) Act 2010.

“While the draft Order made reference to ‘housing activities’ (the first element of section 3) due to the lack of specific reference to the financial well-being and governance arrangements of RSLs (the second element of section 3), the Scottish Information Commissioner (the Commissioner) asked for clarity on this point in his consultation response.

“Given the intention to align the Order to the regulatory oversight powers of the SHR (insofar as these concern the public functions of RSLs and their subsidiaries) we accept that specific reference should be made in the Order concerning the financial well-being and standards of governance of RSLs – and that therefore information in connection with these should be within scope of the Order.

“Such reference would ensure that information about an RSLs financial well-being and governance arrangements can be asked for directly from an RSL – rather than, for example, by proxy from the SHR (which might not yet have been supplied with
the relevant information by the RSL).

“Consequently, the wording of the Order has been adjusted to ensure that information in respect of an RSLs’ financial well-being and governance arrangements will come within the scope of the Act. This is on the basis that it is a function of an RSL to provide information to the SHR to allow the SHR to monitor, assess and report on RSLs’ financial well-being and standards of governance. We would suggest that providing information to a regulator in order that the regulator can discharge its statutory functions is itself clearly a function of a public nature.”

Other provision not covered by SSTs, such as mid market rent, and care/support services, will not be subject to FOI.

The Scottish Government concluded: “It is clearly in the interests of all concerned – the RSLs (as new Scottish public authorities), potential information requesters and the Scottish Information Commissioner (as regulator) – that the Order be drafted with as much clarity as possible.

“While we would not agree with the interpretation that some have placed on the Order as subject to consultation, the Order has been revised to provide additional clarity by providing that the management of housing accommodation (paragraph (b) of the definition of housing services) is only in scope where the RSL has granted a Scottish secure tenancy or a short Scottish secure tenancy.

“This is intended to make it clear that non-social housing functions of RSLs (such as providing accommodation for private renting or at mid-market rents) are excluded from the Order.”

The Scottish Government reversed its intention not to extend the Freedom of Information legislation to housing associations in November 2015, though the process has been subject to delays.

It consulted on proposals to designate RSLs as public authorities for the purposes of the Act between December 2016 and February 2017.

Following consideration of the responses a further consultation was undertaken on the terms of a draft order proposing to extend FOISA to RSLs, as well as RSL subsidiaries, on the basis of aligning information access rights to the existing powers of regulation and oversight exercised by the Scottish Housing Regulator. This second consultation ran from 6 December 2017 to 7 March 2018.

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