The consultation paper set out the basis on which the Scottish Government supported designation of RSLs as public authorities for the purposes of Freedom of Information legislation.
Having considered all issues in respect of the consultation, the Scottish Government is of the view that RSLs should be designated as public authorities for the purposes of the Act insofar as they undertake functions for which they are already subject to regulation by the Scottish Housing Regulator (as referenced at section 3 of the Housing (Scotland) Act 2010). The intention is to align information access rights to the regulatory powers of the body responsible for overseeing RSLs.
The order therefore proposes to designate RSLs insofar as they undertake functions as defined by the term 'housing activities' at section 165 of the Housing (Scotland) Act 2010 and in respect of which are already subject to regulation by the Scottish Housing Regulator.
The Housing (Scotland) Act 2010 defines 'housing activities' as
any activities undertaken by a social landlord in relation to housing services which are or may be provided by it,
'housing services' means providing housing accommodation and related services and includes anything done, or required to be done, in relation to-
(a) the prevention and alleviation of homelessness,
(b) the management of housing accommodation,
(c) the provision of services for owners and occupiers of houses,
(d) the provision and management of sites for gypsies and travellers, whatever their race or origin.
We acknowledge that insofar as RSLs undertake functions relating to care, as opposed to housing, such activities might constitute functions of a public nature. However, the provision of care services is a particularly wide-ranging function undertaken by numerous organisations, but which, as far as we are aware, only forms a relatively small part of those activities undertaken by RSLs - most of which by definition will relate to the provision of social housing and related activities.
The present order focuses designation on housing services - specifically those functions and activities for which the Scottish Housing Regulator has existing regulatory responsibility. We would note that this focus on a particular function is consistent in also being the approach taken in extending the Act to grant-aided and independent special schools - specifically in respect of the educational functions undertaken by these organisations.
However, we also note, specifically in respect of care functions, the intention (as highlighted in the biennial report  published in October) to explore whether certain organisations delivering health and social care functions but currently not subject to the Act should be brought within scope of the legislation.
A number of consultation responses noted issues around factoring services provided by RSLs. We consider that the provision of a factoring service - usually relating to general maintenance or improvement of common aspects of property - would be widely recognised as a 'housing service' in terms of section 165 of the Housing (Scotland) Act 2010.
We also note that a number of local authorities - who are subject to the Act - provide factoring services. In addition, the Scottish Social Housing Charter sets out the standards and outcomes that owners should receive from the property management services they receive from social landlords. In common with the other standards and outcomes set by the Charter, the Scottish Housing Regulator monitors, assesses and reports on how social landlords perform against these standards and outcomes.
Given the integral nature of factoring to 'housing services' potentially provided by RSLs we consider that information relating to factoring would fall within scope of the terms of the proposed order.
As noted above, there is potential for inconsistency in terms of access to information depending on whether a function as defined in terms of 'housing activity' is undertaken by an RSL or an RSL subsidiary. Therefore, in the interests of consistency and in acknowledging the close relationship between parent RSLs and their subsidiaries, we propose to include within scope of the order RSL subsidiaries (as defined at section 164(c) of the Housing (Scotland) Act 2010) within the terms of the draft order.
Finally, the proposal to designate RSLs as public authorities for the purposes of the Act ensures that, irrespective of the changes made to the role of the Scottish Housing Regulator by means of the Housing (Amendment) (Scotland) Bill currently before the Scottish Parliament, access to information rights to information held by RSLs will ultimately be maintained - and strengthened.