Summary of Responses
All responses are considered as part of the consultation process. Organisational responses are summarised below.
Regional Tenant Organisations ( RTOs)
In support of the proposals, the RTOs variously highlighted that RSLs were in receipt of public subsidy/grants to build homes and for community projects, that they were social housing landlords and that there should be no restrictions in terms of making information available (other than for certain sensitive information) for RSLs who must abide under the same law as Councils.
Support for the proposals also came from tenants groups including the Argyll Tenants' Panel and the Wyndford Residents' Association. The latter considering that making RSLs subject to the Act could help solve some of the problems experienced by their members - with specific reference being made to property factors and instances of monopolistic behaviour in the provision of this particular service. Further support for extending coverage and making housing associations and co-ops truly open, transparent and accountable was given by the Glasgow Homeowners' Campaign. The Campaign also supporting including factoring services - given surpluses were used for public purposes.
The local authorities who responded identified a range of issues in support of the proposals. For example, Dumfries and Galloway Council (among others) noted the public funding RSLs received, as well as the services they delivered to a range of vulnerable people; Falkirk Council listed a broad range of functions underpinned by statute (for example, homelessness duties, provision of Scottish Secure Tenancies and the accountability of both local authority landlords and RSLs to the Scottish Housing Regulator in terms of listed 'housing activities'); both South Lanarkshire and North Ayrshire Councils drew comparison between the rights to information available to local authority tenants but not to RSL tenants; Orkney Islands Council noted the close working relationship, primarily to deliver the Local Housing Strategy, between the Council and Orkney Housing Association Ltd; Glasgow City Council noted, since stock transfer to Glasgow Housing Association ( GHA) in 2003, their reliance on RSLs in housing supply; finally, the Association of Local Authority Planning Officers also wrote in support, noting that in signing the same form of contract as local authority tenants, RSL tenants, other than in respect of the right to access information from their landlords, have the same rights as local authority tenants.
Registered Social Landlords
Argyll Community Housing Association in support of extension considered that as a body in receipt of public funds and providing services to families and communities there was a logic to extending the Act.
Blackwood Homes and Care considered that if they did not provide the service they did, a public authority would need to perform it - probably in most cases by commissioning other providers. While opposing extension, Blackwood Homes and Care also considered that in the event of the Act being extended, it should apply to any organisation commissioned to provide a care service. This would ensure there was no competitive disadvantage where care providers not subject to the Act could obtain commercial information from those who were subject to the Act. However, if concerns about administrative and commercial impact were addressed, extension of the Act would fit with the organisation's values and principles.
Cassiltoun Housing Association in opposing extension noted the small size of many RSLs and also the range of information that could be found on their website, along with published accounts, newsletters and the data provided to the Scottish Housing Regulator.
Castle Rock Edinvar Housing Association noted that only a certain amount of development work was publicly funded (rather than privately), only a small number of lets were in respect of statutory duties regarding the homeless, and the extent of regulation and existing rights to information for tenants. While opposing extension, Castle Rock Edinvar considered that in the event of a decision to extend this should be limited to the RSL - and not subsidiaries.
Grampian Housing Association also opposed extension of coverage to RSLs.
Knowes Housing Association in opposing extension noted that RSLs were already required to provide significant levels of information to the public, for example through the Charter and considered extension would be of no benefit to those requiring information.
Link Group while supporting extension and agreeing RSLs did carry out 'functions of a public nature' considered that this would bring limited benefits to its customers. Link Group also noted confusion around the ONS classification question. In addressing the various factors identified in the consultation paper Link Group highlighted the extent of reporting and regulation that already existed as well as the wide range of information provided to customers and the level of detailed statistical data submitted to the Scottish Housing Regulator. Link Group were also doubtful as to the extent that loss of information rights following stock transfer would have adversely affected tenants - given most RSLs operated in the spirit of the Act.
Lister Housing Association while opposing extension, acknowledged that RSLs undertook functions of a public nature.
Manor Estates Housing Association noted that while RSLs were undoubtedly private sector organisations their functions were 'public', for example, the provision of affordable housing and the development and maintenance of sustainable communities. In opposing extension Manor Estates also noted that adequate direct and indirect provision of information already existed without increasing the burden on RSLs - ultimately borne by tenants via rent payments.
North View Housing Association in supporting extension agreed that the provision of social rented houses and flats was a function of a public nature.
Port of Leith Housing Association emphasised their commitment, as a business with a very clear social purpose, to openness, transparency and accountability - underpinned by existing regulatory regimes, such as the Scottish Housing Regulator, OSCR, the Care Inspectorate etc. In opposing extension Port of Leith considered that while they undertook a number of duties to comply with legislation their primary identity and purpose was derived from their incorporation as an independent company and registered charity.
Rural Stirling Housing Association acknowledged that RSLs undertook functions of a public nature - and noted that they had already decided to adopt the SFHA and GWSF's Model Publication Framework. However, Rural Stirling considered that both existing regulation and tenants' views should be taken into account in a decision on extension of the Act. In opposing extension Rural Stirling observed that RSLs were already subject to regulation by, among others, the Scottish Housing Regulator and OSCR. As an alternative to extension, the Charter could be revised to incorporate increased requirements relating to responsiveness to information requests. Rural Stirling also noted their very high 'tenant satisfaction' rating.
Shire Housing Association did not consider a reasonable case could be made for extending the Act to RSLs emphasising that RSLs were not 'public bodies' and believing that extension could jeopardise RSLs' strong tradition of community engagement and transparency. Shire noted that they had received very little public funding over the last decade and also observed their very high satisfaction levels regarding the information they provided to their tenants.
Weslo Housing Management in supporting extension and the principles of the Act, noted the information already provided through the Charter, and in agreeing that RSLs did undertake some functions of a public nature, specifically the provision of housing for those in need, expressed concern about the potential cost implications of extension.
Wheatley Housing Group (also representing their RSLs), while supporting the principle of extending the Act to RSLs, did not accept that RSLs undertook functions of a public nature. WHG noted that while the consultation was based on the current regulatory context, changes to the way in which the RSL sector was regulated would potentially affect the basis of the consultation.
WHG contended that providing Scottish Secure Tenancies did not justify the conclusion that RSLs undertook statutory functions - and was inconsistent given that private tenants also benefitted from protections set out in statute (under the Private Housing (Tenancies) (Scotland) Act 2016). WHG also downplayed the importance of the requirement on RSLs to consult tenants on rent setting as the actual decision-making was for RSL Boards. In addition, WHG did not agree that the existence of legislative obligations equated to an organisation performing functions of a public or statutory nature.
In respect of public funding WHG highlighted that public funding was not the dominant source of RSL income - with the public funding that RSLs did receive used to lever in private finance. WHG also considered themselves as partners of government in delivering a social function - rather than an agent of government. In terms of regulation WHG contended that the regulatory environment was designed to ensure tenants' interests were being served - rather than the state prescribing how RSLs operated (noting that there were no plans to extend the Act to other regulated sectors such as utilities and financial services). Finally, WHG noted the already extensive availability of information, for example, via the Scottish Housing Regulator.
Campaign for Freedom of Information in Scotland: Welcomed the proposals considering that RSLs provided a service 'of a public nature', for example, given their functions would require to be performed by a public authority; the degree of state regulation, oversight or control; the issue of lost rights to access information and their collective public benefit - for example, with regeneration programmes.
The CFoIS sought an assurance that the 20 days' response time would apply equally across RSLs and also for the provision of more information in respect of RSL subsidiaries. The CFoIS (who offered training services to RSLs, tenants and requestors) did not consider that coverage would impose a significant administrative burden on RSLs given their existing responsibilities - including in terms of the EIRs. The CFoIS also commented extensively on developments in Human Rights legislation in context of access to information rights. Unison Scotland wrote in support of the CFoIS's response.
Chartered Institute of Housing Scotland: Agreed with the principles of transparency and that RSLs should share information with tenants, customers and the public - noting that CIH Scotland played an active part in promoting tenant scrutiny in partnership with the Scottish Government. The primary concern was the potential burden of the legislation - to be ultimately resourced by tenants through rental income.
CIH Scotland noted that the Charter already placed a duty on all social landlords to communicate with their tenants and other customers - with the data required to be collated and submitted to the Scottish Housing Regulator publicly available and allowing for direct comparison of landlords' performance.
Council of Mortgage Lenders ( CML): Did not agree with the proposal as 1) information rights already well served; 2) disproportionate to any benefit; 3) would consume substantial RSL resource; 4) inconsistent to define as public authorities while at the same time legislating to ensure they remain private bodies for accounting purposes (with reference to the de-regulatory intentions behind the proposed Housing (Amendment) (Scotland) Bill).
CML acknowledged that recipients of Housing Association Grant must be accountable for their activities when spending from the public purse and also that some stock transfer tenants had lost information rights. However, CML considered that information rights could be just as well served, if not better, by the existing regulatory and reporting arrangements on RSLs (though if necessary more could be done for stock transfer tenants in terms of awareness of what information was available from existing sources).
Glasgow and West of Scotland Forum of Housing Associations: Writing on behalf of its 68 member associations, GWSF noted that the issue of access to information was taken very seriously - and that housing associations had a good track record of making high quality, accessible information available, whether through their websites or publications such as reports on annual Charter performance.
Few members were convinced of the case for extension - or that extension would put right any significant injustice. The GWSF reported a more even spread of views on the practical question of whether extension should go ahead, with a slight majority of members indicating opposition (with some also considering that extension was in any case a fait accompli). GWSF therefore formally opposed extension.
In noting the importance of information provision for RSLs, GWSF noted the Model Publication Framework jointly published with SFHA - informed by discussions with the Scottish Information Commissioner.
GWSF recognised FoI was about a wider public than tenants alone but noted RSL tenants already felt significantly better informed by their landlord than did local authority tenants. GWSF also observed that, unlike with local authorities, it would specifically be RSL tenants who would bear the costs of compliance. GWSF also considered that undue emphasis had been given to the issue of stock transfer and the resultant loss of information rights - disregarding the huge benefits that stock transfer normally brought to tenants.
The majority of GWSF members agreed with the consultation paper's arguments that many of the mainstream services provided by housing associations were of a public nature - even if provided by organisations which were quite distinctly different from most public bodies.
A significant majority of GWSF members agreed that the activities of housing association subsidiaries should be excluded from any extension on the grounds that they were separate organisations undertaking mainly commercial activities and having separate boards.
GWSF recognised that some activities such as MMR were sometimes publicly funded (and must be run through a subsidiary). However, GWSF contested that as MMR fell outwith the Scottish Secure Tenancy regime and, to an extent, was more in competition with the private rented sector than with the social rented sector, MMR provision should not be subject to the Act.
GWSF were also of the opinion that there may be certain functions undertaken by RSLs which it would not be appropriate to include in a potential order, for example, where a relatively small factoring service is run by the core association and not through a subsidiary. Exclusion of a factoring service would ensure consistency of approach to what is or is not subject to FOI, GWSF also noting the now robust legislative obligations around factoring services and the type and quality of information which must be provided to owners.
GWSF, in part referencing research jointly commissioned by themselves and SFHA, identified a wide range of factors to be taken into consideration when assessing the practical impact of extending coverage to RSLs, including staffing arrangements, training and data management systems.
Inclusion Scotland: In respect of 'functions of a public nature' noted the provision of social housing - and that given that several Local Authorities had transferred their entire housing stock to RSLs it made little sense to compel Local Authorities to comply with FOI but not Housing Associations. This made building a comprehensive picture of housing policy across Scotland difficult with RSLs in receipt of public money not being subject to basic levels of scrutiny.
James Reid Foundation: Supported the proposal considering that a class description setting out the functions considered to be covered was the simplest way to proceed. JRF considered that the access to information rights currently held by council house tenants should match the rights given to RSL tenants. Similarly to the CFoIS, the JRF sought assurance that a response time of 20 working days would apply to all RSLs. The JRF also sought further information on RSL subsidiaries.
Scottish Council for Voluntary Organisations: Supported the extension of the Act to include the provision of all public services, irrespective of whether those services were provided by public, private or third sector organisations. However, SCVO opposed extension of the Act to individual third sector organisations per se or in their entirety as this would represent a disproportionate burden and discriminate against them in respect of their non-government and non-public service work.
SCVO also advocated the insertion of FOI clauses into all contractual relationships between government and public service providers that are limited to that contract.
SCVO supported the extension of the Act to RSLs provided the focus was on the public functions delivered rather than the organisations themselves. SCVO considered that opening up RSLs to FOI could help to ensure public services were delivered to a high standard. For the SCVO the key question centred on the balance of promoting tenants' rights to information versus the potential cost burden of extending the Act and the precise standing of third sector organisations.
SCVO noted a potential consequence of a decision to extend the Act to RSLs might be the removal of RSLs from the remit of the Lobbying Act, thereby creating an inconsistency with regards to information rights between RSLs and other non-public bodies.
SCVO considered that based on the characteristics outlined in the consultation paper RSLs did fulfil functions of a public nature and also an important social role in forming a central pillar of social housing provision. However, SCVO noted that the Act should only be extended to organisations to cover the specific functions of a public nature they were delivering, not all activities. Only functions completed on behalf of a local authority - not those delivered in assistance to local authority functions - should be included.
In discussing those criteria appropriate to include, SCVO considered that receipt of money alone could not be seen as a valid reason in itself for coverage. In addition, SCVO were opposed to attempts to extend coverage to charities based on 'public benefit' - a term not synonymous with public function.
SCVO also noted that, while RSLs might act in the spirit of FOI, extending coverage would bring the information access rights of RSL tenants up to the level of local authority tenants, creating consistency.
Scottish Federation of Housing Associations: SFHA noted the concern in the sector that extension may already be a forgone conclusion - and wished to ensure that all arguments were properly considered. The key concern raised by SFHA was the acknowledged lack of understanding of what the impact on RSLs might be, and that any increased costs associated would have to be met through tenants' rents. SFHA was aware of tenant opposition to extension due to such concerns.
SFHA stated that RSLs were open and transparent organisations who provided a range of information to their tenants and service users. SFHA and GWSF had also jointly published guidance in the form of a Model Publication Framework - to be reviewed in September.
Moreover, RSLs were subject to regulation from the Scottish Housing Regulator, OSCR (when charities) and the Care Inspectorate (when providing support/care services). Complaints about RSLs could also be made to the SPSO. SFHA also noted the high levels of satisfaction expressed by RSL tenants (assessed against the 'communications' outcome in the Charter) in comparison to local authority tenants.
SFHA acknowledged that the Charter only extended to tenants and service users of RSLs, whereas FOI extends to the public in general. SFHA considered that given the high level of tenant satisfaction with RSL performance in keeping them informed and the apparent lack of evidence in support of extension from tenants and tenant groups within the sector, this ultimately indicated that tenants would not be the beneficiaries of extension.
With respect to the decision of the ONS to classify RSLs as 'public non-financial corporations' for the purposes of the national accounts, SFHA highlighted the inherent contradiction in simultaneously seeking to define RSLs as public for the purposes of one piece of legislation and seeking to redefine RSLs as private for the purposes ONS classification.
SFHA acknowledged that, in terms of the definitions given in the consultation paper, it was clear that RSLs performed some services of a public nature. SFHA comprehensively highlighted the potential impact of extension on RSLs - noting its own commissioned research on this - particularly the concerns about extension on landlords of 1000-3000 units.
SFHA supported the proposal not to include RSL subsidiaries within scope of the Act given their activities were undertaken on a commercial basis and were not of a public nature. Any resulting order should focus specifically on RSL housing services of a public nature only.
Scottish Information Commissioner: Considered that, on balance, RSLs should be subject to FOI. In the Commissioner's view, RSLs were undertaking functions of a public nature and the case for them becoming subject to FOI was persuasive.
The Commissioner briefly discussed both the 'rights based' approach to extending coverage and the 'factor based' approach to extending coverage. In context of the former, the Commissioner argued that loss of rights should be a key consideration - noting the 15,000 households where FOI rights had been lost as a result of local authority housing stock transfer.
The Commissioner provided broad general support for those factors identified in the consultation paper as being central to whether RSLs undertook functions of a public nature, for example, the statutory underpinning of certain functions, the considerable extent of public funding, the degree of state regulation and the collective benefit provided by RSLs. The Commissioner also suggested that further enquiry should be made in terms of establishing the extent RSLs may act as a monopoly. Again, particular emphasis was placed on parity of rights to information provided by the universal right of Freedom of Information (for example, in comparison with the Charter or the Model Publication Framework developed by SFHA and GWSF).
The Commissioner cautioned against giving disproportionate weight to burden arguments - especially when balanced against the positive benefits of the universal right. In particular, the Commissioner commented that RSLs will already be responding to requests for information and the lack of evidence that other bodies brought within scope of the Act have experienced significant increase in request/enquiry numbers.
The Commissioner also made reference to other factors considered relevant to RSLs, including the extent that their activities were enmeshed with the relevant public authority and that extending coverage would support increased civic engagement and parity of rights.
In respect of subsidiaries, the Commissioner identified two concerns about excluding subsidiaries from the scope of an order 1) whether RSLs would hold the information about their subsidiaries that the public want to access and 2) whether there is sufficient safeguard to ensure that FOI continues to apply to the delivery of public functions (in the event of RSLs divesting public functions to subsidiaries).
In respect of the timing of an order, the Commissioner noted that nine month's preparation time (from the date the order is approved) as a minimum was needed.
Shelter Scotland: Acknowledged the significant amount of information returned to the Scottish Housing Regulator and the many good examples of good practice in transparency and information sharing in the sector. Shelter Scotland considered that, in addition to the provision of information via the Charter, the possibility of being able to make FOI requests may also promote good practice in information sharing.
Shelter Scotland noted that on rare occasions tenants had made contact because they were struggling to access information from their housing association. However, Shelter Scotland would not want FOI requests to place an additional financial burden on RSLs and interfere with the delivery and quality of their core activities - though did not consider that cost was a significant consideration for expanding FOI requests to RSLs. On balance, the value of FOI to tenants, prospective tenants and those acting on their behalf would be worthwhile.
Unite the Union: Highlighted the change in public service delivery models since the Act came into force. Unite considered that RSLs provided a service 'of a public nature', for example, given their functions would require to be performed by a public authority; the degree of state regulation, oversight or control; the issue of lost rights to access information and their collective public benefit - for example with regeneration programmes.
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