Defining 'functions of a public nature' of Registered Social Landlords
As previously stated, the provisions of the Act can be extended to bodies that appear to the Scottish Ministers to exercise functions of a public nature. The premise of this consultation is that, as providers of social housing, RSLs exercise functions of a public nature and that a case can be made for extending the Act to them.
The following sections - in accordance with our 'factor-based' approach - outline key considerations in our proposal to extend the Act to RSLs. However, as already noted, 'functions of a public nature' is not defined in the legislation. Moreover, we would not assume that all the factors outlined above would necessarily apply to all functions undertaken by RSLs.
The consultation therefore gives all interested parties the opportunity to respond and set out their reasons for considering in what way, and to what extent, RSLs undertake functions of a public nature.
Statutory functions carried out by RSLs
One criterion for establishing whether a body exercises functions of a public nature is whether those functions are defined - or underpinned - in statute. It seems clear that this applies to RSLs.
Under section 11 of the Housing (Scotland) Act 2001 RSLs are required to offer tenants Scottish secure tenancies. The reason for this is that RSLs are landlords of social housing rather than private housing. A secure tenancy is also required to be offered by local authorities and gives tenants greater security of tenure than they would receive under an assured or common law tenancy.
In addition, when setting rents, RSLs must comply with certain principles including affordability. This includes, under section 25(4), the requirement for RSLs to consult their tenants - rather than the rents being set by the market as in private tenancies.
A further obligation for RSLs is at section 5(1) which provides that, where a local authority has a duty in relation to a homeless person, it may request an RSL to provide accommodation for that person. Section 5(3) requires an RSL, within a reasonable period, to comply with such a request unless it has a good reason for not doing so.
However, it is the Housing (Scotland) Act 2010 which sets out the 'legislative registration criteria' for RSLs. Section 24(1)(b) states that an RSL must be established for the purpose of, or has among its objects and powers, the provision, construction, improvement or management of:
(i) houses to be kept available for letting,
(ii) houses for occupation by members of that body, where the rules of that body restrict membership to persons entitled or prospectively entitled (as tenants or otherwise) to occupy a house provided or managed by that body, or
Any 'additional purposes' must be from among -
(i) providing land, amenities or services, or providing, constructing, repairing or improving buildings, for its residents (or for its residents and other persons together),
(ii) acquiring, or repairing and improving, or creating by the conversion of houses or other property, houses to be disposed of on sale, on lease, on shared ownership terms or on shared equity terms,
(iii) constructing houses to be disposed of on shared ownership terms or on shared equity terms,
(iv) managing (A) houses which are held on leases or other lettings (not being houses falling within subsection (1)(b)(i) or 1(b)(ii)), or (B) blocks of flats (a block of flats meaning a building containing two or more flats which are held on leases or other lettings and which are occupied or intended to be occupied wholly or mainly for residential purposes),
(v) providing services of any description for owners or occupiers of houses in (A) arranging or carrying out works of maintenance, repair or improvement, or encouraging or facilitating the carrying out of such works, (B) arranging property insurance,
(vi) encouraging and giving advice on the formation of registered social landlords,
(vii) providing services for, and giving advice on the running of (A) registered social landlords, and (B) other organisations whose activities are not carried on for profit which are concerned with housing or matters connected with housing,
(viii) promoting or improving the economic, social or environmental wellbeing of (A) its residents (or its residents and other persons together), or (B) the area in which the houses or hostels it provides are situated,
(ix) giving financial assistance (by way of grant or loan or otherwise) to persons in order to help them to acquire houses on shared equity terms.
We suggest that the various 'purposes' identified in section 24 provide 'statutory underpinning' in establishing that RSLs undertake 'functions of a public nature'.
In tandem with those purposes set out at section 24 of the Housing (Scotland) Act 2010 we would also make reference to section 3 of the same Act. This section outlines the general functions of the Scottish Housing Regulator ( SHR) which are:
to keep a publicly available register of social landlords and to monitor, assess and report on (i) social landlords' performance of housing activities, and (ii) registered social landlords' financial well-being and standards of governance.
The legislation defines 'housing activities' as any activity undertaken by a social landlord in relation to housing services which are or may be provided by it. 'Housing services' are defined as the provision of housing accommodation and related services and includes anything done, or required to be done, in relation to:
(a) the prevention and alleviation of homelessness,
(b) the management of housing accommodation,
(c) the provision of services for owners and occupiers of houses,
(d) the provision and management of sites for gypsies and travellers, whatever their race or origin.
Section 3 of the Housing (Scotland) Act 2010 applies to both local authority landlords and registered social landlords. In other words, both categories of landlord are accountable to the SHR in terms of those 'housing activities' referenced in that section.
This would seem to strongly indicate that, for the purposes of statutory regulation by the SHR, there is a recognition of parity in terms of those functions defined as 'housing activities' between local authority landlords and RSLs. In other words, at least insofar as 'housing activities' are defined, there is reason to consider the activities of RSLs to be on a par with those of local authority landlords - and as such also to be of a public nature.
We also consider the extent - and regularity - of public funding to be key in assessing the 'public nature' of organisations. Both historically and currently RSLs have received considerable sums of public money. The contribution of RSLs to delivering the Scottish Government's affordable housing target is critical. Grant is therefore available to RSLs to acquire land or buildings and to build, convert or improve housing for social rent.
We note the considerable private funds also invested in support of social housing. However, given the extent of RSL public funding - and the direct relation between much of this funding and particular functions it is allied to - we consider that there is strong reason to take into account public funding in determining whether or not RSLs are undertaking functions of a public nature.
Social role of RSLs
The provision of social housing in Scotland has a long history with many early associations and co-operatives evolving into present day RSLs.
Almost half of social housing in Scotland is provided by RSLs. Indeed, as rates of home ownership decline and the numbers of people renting properties grows we consider it very likely that social housing - including that provided by RSLs - will play an increasingly important role in housing provision.
We would not suggest that, given the scale and scope of the RSL sector, the state would - or could - assume the responsibilities that RSLs, whether individually or collectively, currently undertake. However, it is clear that RSLs are heavily relied upon to play a central role in the provision of social housing - and in all probability will be increasingly expected to do so by the state.
In other words, we believe it is clear that RSLs, as providers of social housing - supported by considerable financial assistance from the state - have been accepted as being responsible for providing a key public service. We would also suggest that, in applying to be registered as a social landlord - with the benefits and responsibilities that this brings - there is at least a degree of acceptance on the part of the RSL that they will be undertaking public functions.
Finally, given the critical role of social housing - predominantly provided by RSLs - in the modern Scottish housing mix, we would also suggest that RSLs would be seen as providing a collective benefit for the wider public good.
Regulation and Oversight
Registered Social Landlords are subject to regulation by the SHR. The SHR is an independent regulator directly accountable to the Scottish Parliament. As already noted, the Housing (Scotland) Act 2010, which created the SHR, also sets out its statutory objectives, functions, powers and duties.
The SHR's statutory objective is to safeguard and promote the interests of current and future tenants, homeless people and other people who use services provided by social landlords. Service users are identified as: tenants and their families; people who are homeless; Gypsy/Travellers and owner/occupiers who receive factoring services from a local authority or RSL.
The SHR keeps a register of social landlords and publishes it to give access to accurate and transparent information about RSLs. The SHR approves which organisations can be listed on the register - and can remove RSLs from the register under certain circumstances.
As noted above, in regulating RSLs the SHR seeks to monitor, assess and report on social landlords' performance of 'housing activities' as well as on their financial well-being and standards of governance. If required, the SHR will intervene to secure improvement and protect the interests of tenants and other service users.
We would suggest that, given the central role of the SHR as a statutory body tasked with the regulation of RSLs, 'the state' can be seen to exercise a form of oversight over RSLs that it does not exercise over private landlords. RSLs cannot be recognised as such without satisfying SHR registration criteria.
In addition, they are accountable to the SHR in a wide variety of ways, for example, in terms of how effective they are in providing a range of services and complying with the Scottish Social Housing Charter, which itself sets out various standards and outcomes to be achieved in relation to the provision of social housing.
We also note that some RSLs are subject to regulation by other authorities, for example, the Care Inspectorate undertakes statutory inspections of those that provide support services. In addition, RSLs with charitable status are subject to the regulation of the Office of the Scottish Charity Regulator (though the MOU between SHR and OSCR confirms SHR as the lead regulator of charitable RSLs).
Access to Information
At present, while RSLs may voluntarily act 'in the spirit' of Freedom of Information legislation - as well as choosing to make information proactively available - there is no legal obligation under the Act for them to do so. This contrasts with local authority landlords as local authorities are subject to the Act and required to respond to information requests.
However, it is important to note that RSLs are considered to fall within scope of the EIRs (which provide the right of access to environmental information). The EIRs also apply to organisations 'under the control of' an authority subject to the Act - and are therefore broader in coverage. The Scottish Information Commissioner has previously determined that the:
' SHR's significant powers of oversight and direction contained in the 2010 Act, along with its extensive powers of intervention, amount to "control" for the purposes of the EIRs. In particular, the Commissioner notes the monitoring role of SHR in ensuring that RSLs progress towards achieving the standards required by the Scottish Government's Social Housing Charter  .'
In addition, there are other circumstances where non local authority landlords are under a statutory duty to provide information. For example, Section 5(6) of the Housing (Scotland) Act 2001 requires an RSL which holds housing for housing purposes in a local authority's area to comply 'with any reasonable request for information in relation to that housing made to it by the authority in connection with the exercise of the authority's functions'.
Further, under section 32(1)(l) of the Housing (Scotland) Act 2010 RSLs must provide information to the public on their housing services and governance arrangements - as set out in the Scottish Social Housing Charter. The Charter, in effect since 2012, imposes a range of obligations on social landlords. These obligations include a specific outcome requiring social landlords to manage their business so that:
' tenants and other customers find it easy to communicate with their landlord and get the information they need about their landlord, how and why it makes decisions and the services it provides'
The SHR recently reported on how open and accessible social landlords are to their tenants and other service users. The SHR's assessment included analysis of social landlords' data submitted during 2013-2016 in the Annual Return on the Charter. The report  found tenant satisfaction with being kept informed about services and decisions to be high at just over 90% (though the information available varied).
Similarly, we note the recent joint publication by the Scottish Federation of Housing Associations ( SFHA) and Glasgow and West of Scotland Forum of Housing Associations ( GWSFHA) of guidance and a 'Model Publication Framework' for housing associations and co-operatives  .
The Framework and guidance are designed to encourage the housing sector to demonstrate its commitment to being open and transparent about its activities. They aim to set out minimum 'good practice' standards and, in terms of identifying relevant categories of information, in part mirror both the Charter and the Model Publication Scheme issued by the Scottish Information Commissioner.
However, while there are undoubtedly a number of access routes to acquiring information from RSLs, all are limited in some respect in comparison to the right to information provided under Freedom of Information legislation. For example, the EIRs apply only to environmental information while the Charter is specific to 'tenants and other customers' of an RSL. And though overseen by the SHR, the Regulator's role in enforcing the Charter does not compare to the quasi-judicial enforcement powers of the Scottish Information Commissioner.
Loss of Information rights
A number of local authorities have undertaken 'housing stock transfers' - transferring their housing stock to non-local authority landlords. Three of these transfers (in Argyll & Bute, Na h-Eileanan Siar and Inverclyde) took place after the Act had come into force on 1 January 2005.
It will therefore be the case that, in respect of these three areas, while a tenant (or anyone else) could have requested information from their local authority as their landlord before the stock transfer, there was no transfer of Freedom of Information rights to the non local authority landlords. This has been highlighted on a number of occasions, particularly by the Scottish Information Commissioner, as a significant example of a loss of information rights.
Extending the Act to RSLs responsible for stock transfer properties would therefore restore information rights where these had previously been removed.