Social Housing Speed Read – Can a housing association be considered a public authority?

Background

In a report to Parliament in late January 2019, the Information Commissioner (“the Commissioner”) recommended that organisations “exercising functions of a public nature” should be made subject to Freedom of Information (FOI) laws. The Commissioner paid particular attention to housing associations, which were cited as the clearest example of such organisations, due to factors including their public tendering processes to provide public services.

In the aftermath of the Grenfell Tower fire, the Commissioner called for the publication by local authorities of the fire risk assessments they had carried out on their housing stock, but acknowledged that there was a “significant gap” in relation to housing associations, who were not required under FOI legislation to disclose their assessments. The publication Inside Housing subsequently made FOI requests of housing associations to obtain copies of these but out of 94 associations of whom the requests were made, only 13 complied.

Under the Freedom of Information Act 2000 (“the Act”), the public authorities listed in the Act are subject to the EIR, as are organisations that carry out “functions of public administration” under regulation 2(2)(c). Within the last year, the Commissioner has made conflicting decisions regarding whether housing associations fell under regulation 2(2)(c):

• In July 2018 a housing association was found not to be a public authority, as it was not satisfied that the association’s powers equated to undertaking functions of public administration; and
• In August 2018 the Commissioner found that a housing association was a public authority, as its right to apply to County Councils to purchase land to build homes under section 34 of the Housing Associations Act 1985 meant that it was carrying out a function of public administration.

The Commissioner stressed that each case was decided on its own facts and that it was of the opinion that there were material differences between the cases which merited the contrasting outcomes.

Despite this, the Commissioner’s decision in this case was referred to the FTT to consider whether it had erred in concluding that the housing association was a public authority.

The case

The FTT held that, contrary to the Commissioner’s initial decision, the housing association did not carry out functions of public administration under regulation 2(2)(c).

Despite the fact that they were subject to a statutory regulatory framework (including the Housing Act 1996) and was granted powers by statute (including the Anti-Social Behaviour, Crime and Policing Act 2014), the FTT concluded that they were not explicitly delegated any of its powers by statute in order to perform a public administrative function, but that it instead performed its functions despite this.

The housing assocation was not acting as a public authority under the EIR and, as a result, was not required to disclose the information requested of it.

Comment

The FTT’s decision will come as a relief to housing associations as the previous conflicting decisions had left them somewhat in limbo with regards their obligations under the Act and the EIR, whereas now there is a degree of certainty that they will not be subject to the same level of regulation and oversight as local authorities.

However, it is not the end of the story as the FTT in its judgment expressed concern that organisations which acted “in the shoes of the state”, ie by providing social housing on behalf of the government, but without express statutory powers to do so should not be subject to the same requirements of the EIR as local authorities.

Indeed, the Commissioner’s recommendation to extend the scope of the Act to include housing associations within the definition of public authorities was debated in Parliament in early March 2019; if this recommendation were to be brought into force, it would bring housing associations within the EIR’s scope and treat them as public authorities, subjecting them to more stringent requirements.

Housing associations in particular should be sure to monitor any further developments, which Ward Hadaway will cover in future.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.