The Tenants Services Authority (the new regulatory body for RSLs and, from April 2010, local authorities) has been holding a “national conversation” with tenants, touring round in a pink campervan amongst other engagement techniques. The outcome from that, and from broader regulatory conversations one suspects, is Building a New Regulatory Framework: A Discussion Paper. This is destined to be an important document when finalised – comments are due by 08 September 2009 and can be addressed to national.conversation@tsa.dsx.gov.uk – in part because of its (ir-)relevance when thinking about a jr (after Weaver) but, most significantly because of the regulatory standards it will lay down for tenants and landlords (now termed Registered providers [RPs]) as well as the general approach it sets out for the role of the TSA. Readers looking for significant hangers to clothe their jr should look elsewhere as is discussed below.

The broad basis of the TSA’s regulatory ideal is “co-regulation”, which basically means that RPs self-regulate against national standards, but that they also set local priorities as well. The justification for this approach is given at para 3.7 in particular: “The balance between direct regulation and self-regulation enables the standards framework to be more tailored to local priorities than may be possible with uniform national standards prescribed by the regulator. It also generates a degree of ownership in the framework from landlords and tenants …” This is important for two reasons: first, don’t expect to find sufficiently concrete obligations in this document to found a legitimate expectation or anything similar; second, the places to look will be in local or national frameworks produced by RPs as well as the various sub-regulations (through Circulars, Codes etc) produced by the TSA. The TSA also makes a plea for time for the new framework to bed in. A tension throughout the document is the relation between national and local standards (para 4.10 & 4.30).

The TSA role is a long-stop “… when there is a failure to meet a national standard or if a local standard agreed with tenants falls within the regulatory framework” (para 3.2). Personally, I have always been dubious about co-regulation which is an academic concept dreamt up in ivory towers without considering the sensitivity of the interplay between the regulatory partners. Hence, I’m not sure that I buy into the vision of co-regulation as encouraging “… landlords and tenants to engage together with a shared aspiration of improving the standard of service delivery”, which then delimits the TSA’s regulatory activity (para 3.5). This co-regulation is risk-based – following a similar model to that of, for example, the FSA, with “Senior Risk and Assurance Managers” leading – and the assessment of risk will “… determine proportionate, targeted and consistent use of our limited resources” (para 3.15). The focus of the TSA regulation is finance and governance but will also be “outcome-based”, so input processes are less important.

The point about co-regulation in this context is that it offers a way of reducing the direct involvement of the TSA in monitoring compliance (para 5.2). Information to be collated by the TSA will be such as “… enables it to establish an acceptable minimum level of confidence about landlords and the social housing sector as a whole” (para 5.12). This is, of course, in line with the broader approach of government to reduce the reporting obligations and number of PIs.

The TSA have a difficult role, not just because of the diverse nature of the bodies they are to regulate, but also because of the increasingly crowded regulatory space, and most particularly the fact that RPs are generally in hock to private lenders. Thus, it is no surprise that one of the underlying purposes of regulation is a recognition of the importance of an effective regulatory regime to private sector investors in social housing (para 3.3).

The documents sets out three types of national standards which will form the basis for the TSA’s performance assessment of RPs: how social housing is provided; the financial viability and governance of non-local authority RPs; and the economic, efficient and effective delivery of services (the three Es). CLG is shortly to issue its own consultation on the directions it proposes to give to the TSA. The TSA will shortly itself issue formal guidance and amplify its national standards by reference to Codes of Practice (which will be further places to look for compliance).

There then follow six themes that form the subject of the standards: the service offer to tenants; tenant empowerment and involvement; the tenancy agreement; governance; viability; value for money. Each has sub-themes. To give an example of what was meant above about the broad nature of the standards, that for anti-social behaviour and security (at para 4.64) reads as follows: to “‘ensure that providers take a comprehensive approach to tackling and preventing anti-social behaviour and, that tenants feel that their landlords are taking action to deal with persistent nuisance.” Repairs and maintenance (para 4.54) counterbalances “the seriousness of the disrepair and its significance to the occupier” with the three Es. What can be said about these standards is that the TSA has really sought to live up to its name and counterbalance the different actors in the regulatory space paying attention to tenants’ needs and wants where they were rather ignored by the previous regime (or, at least, arguably so).

The two issues uppermost in my mind, particularly after Weaver (on which more to come later), are about tenure and allocations (paras 4.94-4.107). But don’t expect anything enlightening here either. As regards tenure, the proposal is that landlords “issue the most appropriate form of tenancy for the type of accommodation and tenant” (para 4.96) which, of course, facilitates the use of the so-called starter tenancy. As regards RPs’ policy and management of tenancy agreements – including eviction policies – a consultation question which will be of interest to readers is asked as follows:

The current housing associations’ Regulatory Good Practice Note on tenure does not cover these issues, and we would welcome views on whether to continue with this approach or to extend the scope of the national tenure standard beyond issues relating to security of tenure.
4.101 We are interested in exploring how an element of local flexibility could be supported through a more detailed Code of Practice on tenure.

As regards allocations, there is little here of value in truth. It is all about delivering CLG policy on choice and sustainability, in an environment which relies on locally negotiated agreements. There are comments here about the expectation that RPs will work with local authorities “… in respect of their strategic housing function to make sure that a proper balance is struck in ensuring that the interests of different groups are incorporated in local offers” (para 4.106).

Other key issues for afficionados of this kind of stuff are as follows

Chapter 7 is where we get to the heart of the political issue about registration of private profit-making companies. This is a battle that has already been lost or won (depending on your standpoint), partly because Cave accepted the watering down of the nature of the sector. The only remaining question, on which the TSA currently has no view, is as to the criteria for registration. Reading between the lines, it looks like they will go for the minimum.