A group of Anthony Collins Solicitors (ACS) experts from across our various client sectors have gazed into their crystal ball and given us a view on how 2021 is looking.
The Regulator of Social Housing (RSH) issued its annual consumer review on 22 September 2020. Its 8th report covers the year 19–20 which saw them serve 15 regulatory notices - the highest number ever.
We review the main lessons to learn and actions to take when things go wrong. The case studies provide valuable insight into the contributory factors leading to compliance failures and present RP’s with the opportunity to consider whether their own processes leave them open to similar risks.
The review can be found here. The 19-20 year was notable both in the highest ever number of regulatory notices but also the fact 7 were served against local authorities. It also saw the first breach of the Tenant Involvement and Engagement standard (TIE standard) despite 30% of all reports arising from that TIE standard. The importance of tenant engagement will also become increasingly important as one of the key requirements of the Building Safety Bill.
The key points made and themes arising are as follows:
- “Keeping tenants safe is a fundamental responsibility of any social landlord”. The responsibility for ensuring tenants are safe in their homes rests with the RP even when they have a contract with a third party where that third party holds the repairing obligations or the responsibility to carry out Health and Safety compliance checks (described as an “emerging issue”). Two regulatory notices were served against landlords in this position of leasing properties from head landlords (see case study 2 and 10). The one regulatory notice on the TIE standard (case study 10) arose from an RP serving eviction notices on its tenants so it could return a lease to its head landlord. It was criticised for doing so without consultation, without providing support and advice to its tenants or considering what would happen to them.
- Four local authorities were served with regulatory notices due to the failure of their arms-length management organisation (ALMO) to carry out health and safety checks. This ultimately led to their decision to wind up the ALMO.
- As usual, 50% of the reports to the regulator arose from breaches of the Home standard regarding health and safety compliance issues.
- Identifying one failing often leads to then finding similar failings across other health and safety areas.
- RPs not adequately understanding their health and safety legislative compliance requirements or their responsibility to act where risks were identified by their checks. RPs are encouraged to take external advice where they are uncertain.
- Health and safety failings most often arose from:
- inadequate internal controls;
- weaknesses in oversight and risk management arrangements;
- lack of good governance which is “vital”; and
- lack of good quality data - described as “the cornerstone on which all other assurance of compliance is based”.
- When systems and processes fail to operate effectively RPs must ensure they fully understand the causes.
- The consumer standards are the minimum a provider should deliver
Responding to concerns
- Responding effectively is essential when complaints and concerns arise.
- RPs and their governing bodies should ensure that complaints data and trends from complaints are used to help identify problems at an early stage. Does your governing body have sufficient oversight over complaints?
- RPs must treat tenants with fairness and respect, and must demonstrate that they have taken tenants’ diverse needs into account in the course of their business.
- RPs approach to complaints must be clear, simple and accessible, and must ensure complaints are resolved promptly, politely and fairly even when lengthy and/or complex.
Transparency and self-reporting
Yet again there is a strong message that transparency with the RSH is essential. A failure to be transparent “will be taken into account” by the RSH in determining its regulatory response. Self-reporting as soon as an issue is identified by a provider is essential. The RSH is clearly not impressed when it has to respond to third party complaints.
White Paper changes?
There is a nod towards the possible changes in the Housing White Paper which may impact the threshold for serious detriment or allow a level of proactivity in monitoring the consumer standards in the future. The RSH encourages RP’s to anticipate these changes by taking steps now “to improve areas of their service where they need to or their engagement with tenants”.
This report’s case studies all pre-date Covid-19. In relation to statutory safety checks, the RSH has obviously taken a flexible and pragmatic view about the challenges faced in the national lockdown. It is possible that there be less sympathy going into a second wave on the basis providers should have learned some lessons about how to adapt. RP’s should consider whether they can anticipate the compliance issues that will be most problematic in the event of local or national restrictions and where possible take action to address them now.
It will be interesting whether serious detriment will be found where checks have been delayed following a balanced decision about the overall risk. RP’s must ensure that all such decisions are carefully documented in the event of later challenges.
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