Emma Tarran, partner, Trowers and Hamlins
The changing of the guard
It’s finally here — 1 April is the day everything changes as far as housing regulation goes for all types of housing provider in England. So what do you need to know?
On 16 March 2010 the Tenant Services Authority published its long-awaited regulatory framework for English social housing providers. It resembles the plans described in the recent statutory consultation.
There are still six standards covering the same basic areas, although these are now badged TSA standards, not national standards, and there are various small changes to the text of the standards.
The TSA’s fundamental approach is also unchanged — co-regulation is its favoured approach - which means:
- honest and robust self-assessment by providers, with a backbone of TSA intervention where necessary;
- enhanced focus on the role of providers’ boards;
- a TSA focus on outcomes, not detailed processes;
- tenant monitoring and scrutiny of providers.
So what’s new, and what’s different?
Timing and reports
The framework no longer requires landlords to produce an initial baseline report followed by July annual reports. Instead, reports to tenants and the TSA must be published each October in relation to each year ending 31 March.
Providers may be able to negotiate an extension for the first report, due in October 2010, but this first report will need to set out the service offer and how this meets the TSA standards.
Local offer
The consultation required providers to set ‘local standards’. This terminology has gone, and now providers must have a ‘local offer’ in place by
1 April 2011. This means, in the words of the TSA, that each provider must ‘engage meaningfully with tenants and offer them opportunities to agree how service delivery against the TSA standards can be tailored to reflect local priorities’. It remains to be seen whether the TSA intends this to be a substantive change of approach.
Local offers are required in relation to the home, neighbourhood and community and tenant involvement and empowerment standards. In a change from the consultation, no local offer is required in relation to the value for money standard.
The TSA still does not define ‘local’. Instead it says that providers should consider their obligations under the neighbourhood and community standard in relation to local area co-operation, including meaningful co-operation with local strategic partnerships and the strategic housing function of local authorities, and consider whether services to the tenants could be improved by participating in an area-based offer.
The TSA confirms, however, that ‘providers are not under a regulatory obligation to agree local offers with local authorities’.
Providers must set out their plans for developing a local offer in their first annual report in October 2010, and offers will have to be reviewed ‘periodically’, rather than annually as suggested in the consultation.
The consequences of a failure to comply with one or more elements of a local offer are still unclear.
The TSA states that this is primarily a matter for the scrutiny and redress provisions agreed with tenants, but it adds that ‘in exceptional cases (such as when the provider is not delivering services in line with the outcomes set out in the TSA standards and has failed to address this), and where it is reasonable and proportionate’ it will consider more formal intervention.
What do providers need to do?
Aside from the report required for 1 October 2010 identifying the provider’s level of compliance with the TSA standards, and plans for the local offer, there are some key matters to attend to:
Governance audit
The TSA plans to delete most of its current guidance, and the 2008 Act abolishes the ‘schedule 1’ regime, which outlaws non-contractual payments and benefits to RSL board members and employees. Accordingly, providers need to audit policies, constitutions and delegations for references to guidance from the regulator or to the Housing Act 1996. In some cases these references must be replaced with new wording to make them workable.
In particular, providers should check that their board’s delegations to committees, officers and employees work under the new regime. These may be needed to deal with urgent matters (such as employee disputes) soon after 1 April.
New land disposals rules
The detail of the new land disposals rules is beyond the scope of this article, but remember that the section nine consent regime will be replaced. There is a new general consent and new procedures for section 133 consents. What’s more, registered charties may need to comply with section 36, Charities Act 1993 where no other consent is obtained.
A code of governance
It is a specific requirement of the governance and financial viability standard that providers must adopt and comply with an appropriate code of governance. They must also give reasons for the choice and explain areas of non-compliance with the chosen code. This is something that ought to be considered by the board as soon as possible.
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