On 17 November, the Ministry of Housing, Communities and Local Government (MHCLG) published its white paper on social housing regulation. Within it, the government has proposed introducing a new access to information regime for tenants of housing associations and other private registered providers, which will be managed through the social housing regulatory regime.

The proposed scheme will allow tenants or their representatives (including elected representatives) to access information related to the management of social housing held by their landlord, and also relevant information that may be held by sub-contractors.

The Government has said that the scheme will be similar to Freedom of Information law, in that it will include a system of time limits and exemptions. However, it will not have the conventional FOI appeals and enforcement regime which routes complaints to the Information Commissioner and Tribunals.

Instead, applicants will be able to ask the housing association for an internal review, and then to complain to the Housing Ombudsman, who in turn will be able to report 'systemic breaches' to the Regulator of Social Housing.

The proposed scheme is an interesting development for a number of reasons:

  • The government specifically rejected the idea of making housing associations and other PRPs subject to the Freedom of Information Act in 2019. Case law has subsequently found PRPs are not subject to the Environmental Information Regulations. Local authorities and ALMOs are already subject to FOIA if they are 'wholly owned by the public sector', and housing associations in Scotland are subject to Scottish freedom of information law;
  • The complaints regime is bespoke but aligns to the broader (and stricter) regulatory direction for the Regulator of Social Housing in the White Paper;
  • The right of access appears more constrained than 'FOIA proper', in terms of who can ask for information (in that it appears to be restricted to tenants and their representatives); however
  • The right of access appears broader than 'FOI proper' in that it also applies to some information held by subcontractors of PRPs.

We will have to await the introduction of legislation supporting the White Paper to understand the full impact of the proposals. Whilst serving to increase transparency, these arrangements may well increase the administrative burden on private registered providers - good information management and appropriate resourcing will be key to compliance with the regime if and when it is introduced.

Capsticks regularly advises on FOI issues including in the leading case on whether housing associations are subject to the parallel access to environmental regulations. Learn more about our information law services here or get in touch with Andrew Latham.