Access to information – still lacking clarity on the future of transparency

The background briefing notes accompanying Wednesday’s Queen’s Speech made a clear statement that the Social Housing (Regulation) Bill will ensure tenants of private registered providers of social housing (PRPs) will be able to request information from their landlord in a similar way to how the Freedom of Information Act 2000 (FOIA) works for tenants of local authority landlords.

We have seen a continued emphasis on the need for housing associations to act transparently following the Grenfell tragedy and the subsequent social housing green and white papers. For example, the voluntary Together with Tenants Charter contains a commitment to provide residents with “clear, accessible and timely information…about the issues that matter to them” (echoing the requirements of the Tenant Involvement and Empowerment Standard). The revised National Housing Federation Code of Governance 2020 similarly places greater expectations on RPs adopting the Code to make information available in relation to areas such as progress against equality, diversity and inclusion initiatives, activities, performance and plans, as well as board and committee composition.

However, PRPs in England are not subject to FOIA, an issue which has been of contention to many, particularly following the case of R (Weaver) v L&Q [2009] (a case in which Devonshires represented L&Q).

This has been an area which the Information Commissioner’s Office (ICO) has been keen to reform, as set out in its report ‘Outsourcing Oversight? The case for reforming access to information law’, and also in its (unsuccessful) appeal in relation to the applicability of the Environmental Information Regulations 2004 to PRPs in the case of Information Commissioner v Poplar HARCA. Interestingly, we saw FOIA extended to apply to Scottish housing associations in 2019.

As we saw from the sector commentary when the access to information scheme was first announced in the social housing white paper, providing tenants with a legal right to request specific information from their PRP landlord (and to take specific action where that right is not complied with) has the potential to be revolutionary and will raise some very challenging issues.

It would therefore be helpful to have further clarity on the potential complexities of this new scheme, to allow PRPs time to prepare and ensure they can hit the ground running – as the Regulator of Social Housing (RSH) has commented several times in relation to upcoming regulatory changes, now is the time to be preparing and providers should not be waiting for legislation where they are aware of existing weaknesses. However, although the draft Social Housing (Regulation) Bill clauses published in March contain reference to the RSH having the right to set standards for RPs in “matters relating to the provision of information to their tenants of social housing…concerning the accommodation, facilities or services provided in connection with social housing”, the notes accompanying Wednesday’s Queen’s Speech do not help to provide much further clarity on this.

It should be noted that the access to information scheme is only one string in the bow of greater transparency requirements proposed under the new Social Housing (Regulation) Bill and will need to be considered alongside requirements such as publishing performance against the new Tenant Satisfaction Measures.

We would advise our PRP clients to start considering the type of information that will be regularly requested by their tenants (for example, reports relating to the safety of their property) and the types of information which could be considered commercially sensitive (for which we presume an exemption will apply).  This should include asking suppliers and contractors to identify where information they are providing is commercially sensitive.

Should you have any queries on FOIA or the access to information, please contact our Head of Information Law, Hetal Ruparelia, or Gemma Bell.

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