Should Freedom of Information Include Welsh Housing?

Summary: in this article we explore the issue of FOI and should it apply in Wales? 

Scotland Showing the Way

Housing Associations in Scotland will come under the Freedom of Information (FOI) Act from this November (2019). In our context, Freedom of Information refers to a tenant’s or community’s right to access information that is held by a Housing Association.

In Scotland, any Housing Association function relating to Secure Tenancies (and Short SSTs) will be covered by the Bill. This covers most aspects of the Housing Association, for example, repairs services will be covered regardless of whether they are provided by the Housing Association or a subsidiary.

Wales does not have the same devolved powers as Scotland, however, the Information Commissioner based in England has repeatedly noted an important difference between housing associations and local authorities (Councils). Housing Associations are not currently subject to Freedom of Information (FOI) legislation, whereas local authorities are. The Commissioner believes this difference creates a “significant gap in the public’s right to know.” 

• The Information Commissioner believes that it should be extended to social housing; it would put housing assocation tenants on an equal status with Council tenants.
• It would give tenants, communities and elected officials the power to ask questions about the organisation. Most RSLs talk about openness and transparency so why should they fear this?
• Housing Associations play a key role in delivering Welsh Government‘s housing policies and is integral to its ‘Prosperity for All’ programme. Whilst not public bodies, Housing Associations do:

1. receive large amounts of subsidy and special grant funding from 'the public purse'.
2. receive preferential deals when it comes to certain Local Authority or Government assets for development etc.
3. Significant part of their revenue is from Government via housing related benefits.

• The Campaign for Freedom of Information has recently supported Private Member Bills in Westminster. Examples of requests for information which housing authorities have refused include:

1. The cause of a fire in a housing association flat, requested by a neighbouring tenant
2. Whether potentially toxic lead pipes were used for the water supply to a property.
3. The amount of fly-tipped waste and litter collected from a housing association’s estates.
4. The number of repossession orders served since the ‘bedroom tax’ came into force, and the number of those tenants who had no arrears before that date.
5. The number of properties adapted for disabled persons (the requester said she wanted, ‘just the number, nothing else’).
6. The make and model of street lighting on an estate which the requester found ‘overpowering’ at night. He wanted to use the information to contact the manufacturer to see if they could suggest a remedy.

• Scotland are including Housing Associations under FOI from November 2019, and Wales often follows many of Scotland’s housing initiatives by a lag of 2-3 years. It appears Australia also have this already - why shouldn’t Wales?

• Extending FOI legislation to Housing Associations will place greater pressures on their resources. Housing Associations would need to spend time and money gathering and publishing data at the request of tenants, politicians and the wider community. Some would argue that it’s time and money that could be used for providing services to tenants or on constructing new homes. There may be people who missue the service causing excessive work and costs
• Boundaries:  Should/could it include everything done by both RSLs and RSL subsidiaries (irrespective of whether or not the Regulator exercised any regulatory responsibility)?
• After all the drama around ONS re-classification and the deregulation of RSLs, Westminster or the Welsh Government might be reluctant see the FOI extended to avoid the appearance of Government control over Housing Associations.  (However, Scotland seem fine with this?)

• The legislation will not apply to factoring services (their version of Leaseholders).   The Housing sector argued that it would not be appropriate for services they supply to private owners to be subject to FOI when private factoring services were not (ie leaseholders in private blocks).  Other provisions not covered are mid-market rent, and care/support services, will not be subject to FOI.  Governance and finance information provided to the Scottish Housing Regulator will be covered.

The simple answer is no. (see appendix below for a more technical explanation). Scotland has control over Freedom of Information policy; the Welsh Government doesn’t have that power. We would need to ask Westminster to pass a law for us in Wales, but will Westminster be likely to do this for us unless they are interested also?  It unlikely to attract much interest up in London given the chaos that is Westminster at the moment. Alternatively, the Information Commissioner could seek the same for Wales and England via Westminster law change.

TPAS Cymru will be keeping a close eye how it goes in Scotland once its live. Let us know what you think by getting in touch: [email protected]

David Wilton, Chief Executive, TPAS Cymru

Regarding what powers we have/don't have in Wales on this subject, I received this from a Welsh constitutional commentator for those interested in constitutional matters:

‘..An interesting thing to look up:

As suspected, there is different legislation and powers in Scotland compared to Wales when it comes to Freedom of Information

Schedule 1 of The Freedom of Information (Scotland) Act 2002 sets out which organisations fall under FOI in Scotland.   Under section 5 of the FOI (Scotland) Act 2002, the Scottish Govt can make an order designating a public body to be included within Schedule 1.

The FOI (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019 brings RSLs under the Scottish FOI Act.

The Wales Act 2017 makes clear where there are General Reservations, i.e. powers held by Westminster – and amends the Government of Wales Act 2006 to do so.

In the Wales Act 2017, Section L7 of Schedule 7A is inserted into the Government of Wales Act 2006, and makes Information Rights a reserved matter, except for public access to

i) information held by the Assembly, the Assembly Commission, the Welsh Government and ‘any Welsh public authority’

ii) Organisations which come under FOI are set out in the FOI Act 2000 Schedule 1. Section 83 explains that a ‘Welsh public authority’ is a public authority whose functions are exercisable mainly or only in Wales, and appear in Parts 2, 3, 4 and 6 of Schedule 1.

Section 5 of the FOI Act 2000 allows the Secretary of State or Minister for the Cabinet Office to make an order, similar to that of Scotland.

There doesn’t appear to be a mechanism for the Welsh Government to create a new ‘Welsh public authority’ which appears in Schedule 1 without an order in Westminster, even though there is an exemption for them to have powers about information rights over ‘any Welsh public authority’.

On the other hand, there are frequent changes to the FOI act as a result of changes in Welsh legislation so, theoretically, any decision by Welsh Govt to extend the scope of the FOI Act within Wales could be possible – albeit technically requiring Westminster acquiescence, which might not be forthcoming if it raises other questions in England!

A recent example is the inclusion of The Welsh Revenue Authority which was included in the FOI Act 2000 through a UK Statutory instrument in 2018, the snappily titled ‘The Tax Collection and Management (Wales) Act 2016 and the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017 (Consequential Amendments) Order 2018’.

However, this also opens up wider conversation about the future of FOI and the ability of Welsh Govt to 'defend' those provisions if the UK State wanted to make changes.’