Responding to Grenfell – Extending the Freedom of Information Act to housing associations

A few months on and the catastrophic events that took place at Grenfell Tower are continuing to cast a large shadow over the UK housing sector. A number of recommendations have already been made as to how the housing sector could improve its performance to ensure that such horrendous events never happen again. Whilst many of these recommendations have already led to action (for example, the testing of cladding) others are likely to prove more difficult to implement. One such recommendation was recently made by the UK Information Commissioner.

On August 2, the Information Commissioner, Elizabeth Denham, published a blog encouraging social landlords to disclose more fire safety information in the light of the events at Grenfell. Her calls for greater openness and transparency within the social housing sector echo recent recommendation made by the National Assembly for Wales’ Public Account Committee, and are likely to be welcomed by many tenants. Whilst social landlords are sure to embrace Denham’s recommendation by sharing more information on fire safety, another recommendation made by the Information Commissioner is likely to prove more problematic for the social housing sector.

In her blog, Denham notes an important difference between housing association and local authorities (councils). Whilst local authorities are subject to Freedom of Information (FOI) legislation, housing association are not. This difference has important consequences. Organisations that are subject to FOI legislation are obliged to comply with two requirements. On the one hand, they are required to publish certain information and to make it publicly available. On the other, they can be contacted by members of the public who can request that certain information be shared with them. Tenants of local authorities, therefore, have far greater access to information about the way that their landlord operates and performs than tenants of housing associations.

Elizabeth Denham believes that the fact that local authorities are subject to FOI legislation whilst housing association are not, creates a “significant gap in the public’s right to know.”  She has therefore decided that she will be making a recommendation to the Westminster Parliament, setting out that they should extend FOI legislation to cover housing associations. Implementing this recommendation might prove difficult.

Any extension of FOI to housing associations is likely to face stiff opposition. Those opposed to the recommendation would argue that extending FOI legislation to housing associations will place greater pressures on their resources. Housing associations would have to spend time and money, gathering and publishing data as required by legislation. Some would argue that this is time and money that could otherwise be used for providing services to tenants or on constructing new homes. Others might argue, however, that this is a price worth paying for ensuring transparency within the sector and for holding housing associations to account for their actions. A further challenge, however, is likely to provide a far greater stumbling block.

As has been well document, housing associations in all four nations of the UK have recently been reclassified as part of the public sector by the Office for National Statistics (ONS). The decision has had a significant impact on the housing association sector. As a result of the ONS’s decision, the borrowing of housing associations has been transferred onto the public balance sheet, and there are concerns about whether housing associations will continue to be able to access private sector finance to the same extent as has historically been the case. Given these significant consequences, it is not surprising that the Governments in Westminster, Belfast, Edinburgh and Cardiff have taken steps to try and reverse this decision and to return housing associations into the private sector.

In England, the UK Government have already enacted legislation that has seen the Government’s control over housing associations reduced. In Wales, the Welsh Government has also recently reformed the regulatory framework for housing associations, (partly because of the ONS’s decision) and are set to enact legislation that will reform the statutory basis for regulation. In an environment where there is a desire to reduce the control of government over housing associations, in order to reverse the ONS’s decision, it seems unlikely that the UK Government would be prepared to enact legislation that would see the Freedom of Information Act extended, and thus lead to increased government control over housing associations.

TPAS Cymru will be keeping a close eye on this debate as it develops over the coming months and we will work to keep our members and tenants across Wales updated as to how the debate progresses. Let us know what you think by getting in touch with us at [email protected]