How we use our statutory powers

We want to be as open as possible about how we regulate so that tenants and service users, landlords and others with an interest in our work have a clear understanding of what we do, how we do it and why we do it. Through the How we work series of publications we provide more information on how we work within our published Regulatory Framework.

Published

12 October 2021

Updated

12 October 2021

Introduction

Effective regulation includes, when appropriate the right type of intervention at the right time. Tenants and stakeholders can take confidence that we will step in when we need to but we will only do so when it is the right thing to do. Section three gives more information about the statutory intervention powers.

This information note explains how we expect to use these powers, based on our practice in applying the powers. We learn from our experience of using statutory powers and will update our approach to take account of this learning.

We also publish reports on our use of intervention powers which are available on our website and have published Lessons Learned from our statutory intervention in registered social landlords which sets out the key lessons from our use of intervention powers.

What is set out here will not happen often. But it will be of interest and relevance to all landlords, tenants and other stakeholders because what we do as a Regulator in intervening in one landlord not only protects the interests of the tenants of that landlord, but also protects the wider interests of the sector.

Purpose

This How we work note explains what we do and what the social landlord and others can expect in the most typical intervention situations; appointing a manager, appointing governing body members to an RSL, restricting dealings, suspending a governing body member and directing a transfer.

Our sole statutory objective is to safeguard and promote the interests of current and future tenants, people who are (or may become) homeless, factored owners and Gypsy Travellers. This drives all our actions and decisions. So, when we need to intervene in a social landlord we do so solely to safeguard and promote tenants’ and other service users’ interests.

Most of our day-to-day work with social landlords is based on our statutory powers of regulation; we can require information from a landlord, ask questions and carry out inquiries because the legislation which establishes us as the Scottish Housing Regulator also sets out the powers which we have to regulate social landlords. Intervention is when we use a statutory power to require action from a social landlord to improve or address a serious problem in its organisation.

Intervention powers

The Housing (Scotland) Act 2010 (the 2010 Act), section 54, requires the Regulator to issue a code of practice on regulatory interventions setting out how we intend to make decisions about:

  • whether to make a regulatory intervention;
  • which regulatory intervention to make; or
  • how to make a regulatory intervention.

When deciding to exercise regulatory intervention powers we are also required to consider:

  • the desirability of social landlords being free to choose how to provide housing services and manage their financial and other affairs;
  • the speed with which the failure or other problem needs to be dealt with; and
  • our Code of Practice.

Our framework – Regulation of Social Housing in Scotland includes our code of practice on regulatory intervention. We have set out in the framework the principles and criteria which will inform our approach to intervention and our consideration of the most appropriate, proportionate and effective intervention to take. We have not included here the detail of what we consider in making a decision to intervene; that is in our framework.

The intervention powers are different for RSLs and local authorities; this reflects our different regulation duties and their different constitutional and governance arrangements.

The following regulatory powers apply to all RSLs and local authority housing or homelessness service providers:

  • require submission of a performance improvement plan;
  • serve an enforcement notice; and
  • appointment of a manager for housing activities.

The following intervention powers apply only to RSLs:

  • appointment of a manager for financial or other affairs to an RSL in order to ensure that the RSL manages its financial or other affairs to an appropriate standard;
  • remove a member of the governing body of an RSL;
  • suspend a governing body member or an agent of an RSL during or following inquiries;
  • remove a governing body member or an agent of an RSL following inquiries;
  • appointment of a new governing body member to an RSL;
  • restrictions on dealings in an RSL during or following inquiries; and
  • direct an RSL to transfer some or all of its assets to another RSL, if, following an inquiry into its affairs, we consider that there has been mismanagement or misconduct in the RSL’s financial or other affairs, or that an RSL's viability is in jeopardy for financial or governance reasons or because it cannot provide housing services to an acceptable standard.

How we intervene

In deciding whether or not to intervene we will apply our governing legislation and our Regulatory Framework. We will always take account of the particular circumstances involved in a case and exercise our statutory powers appropriately.

In all cases we will consider what is the most effective and proportionate action we could take to protect tenants’ interests, and the interests of other recipients of housing services provided by social landlords, in order to address our concerns and the risks or failings we have identified.

Our work with most landlords about issues of concern does not generally involve the use of our regulatory intervention powers. This is because landlords will generally work with us to address issues of concern. We may use our inquiry powers when we need to obtain information, or assess and investigate an issue or concern with a landlord. Use of our inquiry powers does not amount to intervention in a landlord.

We will not normally need to use our statutory intervention powers where:

  • we are confident that the landlord is able and willing to address our concerns;
  • the landlord engages openly, positively and constructively with us; and
  • the landlord gives us the assurance that it understands and is tackling identified issues effectively.

In such circumstances we will normally work with the landlord to support it to tackle an identified issue(s) and/or deliver improvement. Where appropriate, we will give the landlord the opportunity to address any issue(s) itself prior to using our intervention powers.

We will intervene only when this is appropriate; when we are of the view that the matter is of a serious or urgent nature and the landlord does not have the willingness and/or the capacity to deal with the issue and improve the situation.

In the vast majority of cases a decision to intervene will follow a lengthy period of engagement with a landlord during which we will have sought assurance that the issues of concern can and will be addressed. Where we do not consider we have received the necessary assurance we would consider using our intervention powers.

When we are considering using an intervention power we follow a process with robust internal challenge and senior oversight of any decision to use intervention powers. Certain powers and decisions may only be exercised by our Board. Our Board has delegated the remaining statutory powers to the Chief Executive. Our operational delegation of statutory powers details which decisions around the use of our statutory powers are made by our Board and which are delegated to our Chief Executive or other senior staff.

When making decisions about statutory intervention our internal processes ensure that we:

  • make decisions in accordance with our governing legislation, Regulatory Framework and applicable policies and guidelines;
  • exercise our judgement appropriately;
  • involve all relevant officers from across SHR in the decision; and
  • brief our Board on statutory action to give it assurance that SHR is acting in accordance with our Regulatory Framework. 

When we intervene we will use the most appropriate power to target the identified issue or problem effectively and proportionately. We will set out our actions and the reasons for intervention in a published Engagement Plan.

Statutory appointment of a manager

Below we set out what we will do when we make a statutory appointment of a manager to an RSL or local authority. If we have to appoint a manager to a local authority we will have regard to our practice in RSLs while also taking account of the different governance arrangements in local authorities and the specific legislative requirements applying to local authorities.

5.1 What's in the Act

The power to appoint a manager to a social landlord is set out under sections 57, 58 and 59 of the 2010 Act. The Scottish Housing Regulator may exercise these powers where, having made inquiries, it considers that the landlord is at risk of failing to:

  • meet the standards or outcomes in the Scottish Social Housing Charter;
  • meet a performance improvement target;
  • implement a performance improvement plan; or
  • comply with an enforcement notice; and
  • a person needs to be appointed in order to ensure that the landlord provides its housing services to an appropriate standard.

A manager may also be appointed if an RSL has failed, or is failing, to manage its financial and/or other affairs to the required standard and we consider that a person needs to be appointed in order to ensure that the landlord manages its financial or other affairs in a way that will rectify the failure.

Before appointing or requiring the appointment of a manager for a local authority, we will consult the local authority, relevant representative bodies, and the Accounts Commission, and have regard to their views.

5.2 Appointing a manager

When we decide to appoint a manager, we will identify an experienced manager with the skills, expertise and track record needed to address the landlord’s problems and manage its housing services, and/or financial or other affairs, to an appropriate standard. We have a list of potential managers, published on our website, and will identify the manager from this list. We may run mini-competitions for each appointment, or, if we need to act urgently, make a direct appointment. We will take account of the potential manager’s daily payment rates in making our appointment. In the exceptional circumstances of no list members being available, or if we require other additional skills, we may make a direct appointment outwith the list.

We will establish that the potential manager has no inappropriate or unmanageable conflicts of interest which would prevent an appointment being made. We will also confirm that the manager is able to meet the time commitment required.

We will set out in writing to the landlord the name of the appointed manager, the start date and period of appointment, the purpose of the appointment and the specific remit of the manager, plus the quoted rates. We will also set out these details to the appointed manager.

We will provide these details so that the landlord is clear about what is going to happen, what we expect and to ensure it makes preparations for the appointment.

The landlord can ask for a review or appeal our decision to appoint a manager. We will normally proceed with the appointment pending the outcome of the review or appeal.

We will require the landlord to provide all relevant information and briefing about the organisation to the manager. We will also brief the manager in detail at the start of the appointment about:

  • the organisation;
  • background to the decision to appoint the manager;
  • role and responsibilities of the manager;
  • relevant timescales;
  • reporting requirements; and
  • arrangements for remuneration and termination of the appointment.

We will seek to arrange for the manager to meet with the landlord’s Chair and/or governing body or housing convenor/housing committee.

Generally, we will expect the appointed manager to work directly from the landlord’s office. The manager is not an employee of the landlord, however we expect the landlord to have due regard to its responsibilities towards an individual working in their offices.

The manager will be accountable to us and will report directly to us on progress. We will require the appointed manager to comply with any of our directions about the performance of the manager’s functions (and we may remove the manager for failure to comply). The manager must conduct himself/herself in accordance with our issued remit, our Regulatory Standards of Governance and Financial Management, and relevant good practice and codes of governance. We will require the manager to confirm his/her acceptance of the terms and conditions of the appointment.

5.3 Period of appointment

It is for the Regulator to determine the period of appointment of the manager (section 59 of the 2010 Act), although that period will only be for so long as is necessary to rectify the failure which gave rise to the manager's appointment.

The appointment will be subject to such terms and conditions as we deem necessary and appropriate to enable the manager to fulfil the remit. The terms and conditions may vary from case to case however we would be likely to set out details about the start and end of the appointment, the time commitment required, and any review arrangements.

We are mindful of the costs to social landlords and work to minimise the length of the appointment of a manager. We closely monitor the manager's progress against the remit and will end the appointment as soon as the remit has been fulfilled.

5.4 Powers of the appointed manager

The appointed manager will have general powers to do anything required to perform the manager’s functions (section 59(3) of the 2010 Act) including power to enter into agreements or do anything else which the social landlord has power to do. The 2010 Act further provides a manager with any such powers as the Regulator may specify.

The manager has the ability to act without reference to the landlord’s governing body/elected members/housing committee or senior officers, but may not act beyond the landlord’s powers, (that is, he/she can only do things which the social landlord has the legal capacity to do). The manager will have access to any information held within the landlord.

5.5 The appointed manager's role

The general role of an appointed manager is to oversee the regulated body and to remedy serious problems or failures affecting the provision of its housing services or management of its financial or other affairs as set out in the remit. In most cases the serious problems and failures will involve non-compliance with Regulatory Requirements and the Regulatory Standards of Governance and Financial Management.

Beyond this general role, we will specify the remit for each individual appointment, and this will reflect the reasons for the appointment being made. Depending on these reasons, the manager’s role could involve any or all of the following:

  • dealing urgently with any immediate serious risks;
  • addressing and resolving the issues of concern which required the appointment;
  • carrying out a strategic review and implementing or monitoring any necessary improvements to ensure that the landlord meets the Regulatory Requirements and if it is an RSL the Regulatory Standards of Governance and Financial Management;
  • providing the landlord with a clear strategy for moving forward on the matters covered by the appointment;
  • implementing his/her recommendations, if the social landlord lacks the senior staff capacity to do this effectively;
  • assisting and supporting the governing body to ensure that the RSL’s affairs are managed to an appropriate standard;
  • assisting and supporting the governing body to initiate and commission any required investigations, consider findings, and take any necessary actions arising from the investigation reports; and
  • assuming overall senior management responsibility within the landlord, for example if there is no senior staff member performing that role, or if the conduct or performance of existing senior staff is preventing the landlord from managing its financial or other affairs effectively to the extent this is necessary for the purpose of rectifying the failure which the Regulator considers requires the appointment of the manager.

The manager may identify a need for the regulated body to commission other consultants or agents with relevant expertise, for example where the manager does not have the capacity or specialist expertise to undertake the task, or the social landlord does not employ staff in a particular operational role, or where the manager considers that the organisation’s existing staff resources need to be supplemented. Any such additional commissions would be made by the landlord or the appointed manager, rather than by us.

5.6 Communications

We will liaise with the landlord about our decision and then update the landlord’s Engagement Plan on our website setting out the risks and concerns which led to the intervention, what we require from the landlord and our planned engagement. If the landlord is an RSL we will update its regulatory status to ‘Statutory action’. We will also publish this with a news release to highlight our action.

We will require the landlord to communicate the position to its staff, tenants and stakeholders and in the case of an RSL to notify its lenders of any change to its regulatory engagement level and the reason for this.

Where we have appointed a statutory manager to an RSL, we will contact any public funders and other key stakeholders such as secured creditors, relevant local authorities, the Office of the Scottish Charity Regulator, Scottish Government, and the landlord’s representative body to advise about the intervention.

Where we have appointed a statutory manager to a local authority we will work closely with the Accounts Commission and contact key stakeholders.

At the conclusion of the intervention we will publish a report about the issues which led to the intervention, the purpose of the intervention, and what the intervention has achieved. We will aim to do this within three months of the intervention ending.

5.7 Impact on existing staff

Where we appoint a manager, the regulated body should discuss this fully with existing staff members, so that they are aware of the reasons for the appointment, the appointed manager’s role, and any implications for their own role. Existing staff will remain responsible for the day to day operations in the organisation. It is important that the governing body communicates with staff to make sure they are well-informed about what is happening and about the role of the appointed manager, and what their relationship is with the appointed manager.

If the landlord does not have a senior member of staff in post (e.g. because the previous post-holder has left or is absent from work for an extended period), it may need to fill the senior post on an interim basis to ensure continued management of operations. The appointed manager’s duties may include performing the senior officer role, on a temporary basis to the extent this is necessary for the purpose of rectifying the failure which the Regulator considers requires the appointment of the manager.

If there is an existing senior officer in post, the social landlord will need to manage the situation carefully, taking appropriate legal advice. The appointment of a manager will clearly impinge on the role of the senior staff member, but the appointed manager’s role is not intended to supplant the day-to-day role of the existing senior staff member, unless:

  • the manager’s appointment involves running all aspects of the social landlord’s affairs;
  • the conduct or performance of the current post-holder has been a material factor in the social landlord’s poor performance, or is subsequently identified as such.

Where staff performance or conduct is part of the organisation’s difficulties, it should manage this according to its normal human resources processes, informed by legal advice if appropriate.

5.8 Monitoring the managers appointment

We will require an appointed manager, as a condition of his/her appointment, to submit regular reports to us about progress in carrying out the terms of the appointment. The substance of such reports would normally be shared with the governing body/housing committee except in cases where it would be inappropriate because of the particular nature of the report.

We will monitor and review the manager’s performance, and we may terminate the appointment if he/she fails to adhere to the specified terms and conditions, for example if the manager fails to provide information or to implement directions. In these circumstances we will consider their continued inclusion on our selection list. We may issue directions regarding the exercise of the manager’s functions during the full period of their appointment.

We may decide to change statutory managers, for example where the landlord now requires a different skill set, or if there is not a good fit with the organisation and this may impact on progress.  

Nearing the end of the period of appointment we will formally review the effectiveness of the appointment and whether it should be terminated or needs to be extended to rectify the failure which gave rise to the manager's appointment.

5.9 Handling a complaint about an appointed manager

A complaint about the conduct, treatment by or attitude of a statutory manager should be made to us as set out in Appendix 1. A complaint should be made to us because we have made the appointment and have the power to take action to resolve the complaint including ending the appointment if necessary.

We will consider any complaints about an appointed manager in accordance with the process set out in Appendix 1. If we decide to uphold the complaint we will consider whether the manager has failed to adhere to the terms and conditions of the appointment and whether it is necessary to end the appointment. As set out at 5.8, in these circumstances we will also consider their continued inclusion on our selection list.

To make a complaint about an appointed manager please follow the process set out in Appendix 1.

5.10 Payment of the appointed manager

Under section 59 (2) of the 2010 Act it is for the social landlord to pay the appointed manager’s remuneration and expenses. The manager will claim his/her payment and expenses direct from the landlord. We would expect the landlord to pay any claims for remuneration and expenses within seven days of receipt.

We will be alert to the costs to the organisation of its having to pay for the appointed manager and potentially for other support, and will closely monitor the cumulative costs to be assured of the value to the landlord and its tenants. We will work to conclude the appointment as quickly as possible to minimise cost to the landlord.

Statutory appointment of governing body members

Below we set out what we will do when we appoint additional members to an RSL governing body and what the RSL can expect. This is a statutory power which only applies to RSLs.

6.1 What's in the Act?

The powers to appoint individuals to an RSL’s governing body are set out under section 65 of the 2010 Act. The Regulator may appoint an individual as a governing body member of the RSL in the following circumstances:

  • in place of a governing body member we have removed under section 60 or 62, or
  • where there are no governing body members, or the RSL has an insufficient number of governing body members to appoint governing body members itself and its constitution does not provide a mechanism for appointing governing body members in these circumstances, or
  • where we consider it necessary in order to rectify a failure by the RSL to comply with an obligation relating to its financial or other affairs for it to have an additional governing body member.

The 2010 Act uses the term “officer” for a governing body member of an RSL whether the RSL is constituted as a registered society or as a registered company. In our Regulatory Framework and in this information note we will refer to governing body members rather than officers. We use the term “governing body” as a generic term for the board of management, management committee, or board of directors of an RSL. We will use the term “appointees” for these appointed officers to the governing body.

The 2010 Act also uses the term “constitution” to refer to the articles of association for a registered company or the rules in relation to a registered society. In this note we use the term “constitution” from the Act to mean the rules or articles of an RSL.

6.2 Appointing an individual to the governing body

When we decide to appoint individuals to an RSL, we will select appointees who individually and/or collectively have the skills and experience necessary to support the governing body in addressing the RSL’s problems. We identify potential appointees from people whose skills and expertise we are already aware of, most often this is from our engagement with individual landlords who have handled complex issues well. Ordinarily these will be experienced staff or governing body members from other RSLs but can be drawn from other sectors. We have published an Information Note for statutory appointees to governing bodies of registered social landlords which gives more information about the appointee role and how we select appointees.

In RSLs where we have made appointments to the governing body the support the appointees have provided has been essential to helping the organisation to improve. We recognise and value the support colleagues in the sector provide to RSLs experiencing difficulties. This voluntary commitment from appointees is important not just to help individual RSLs but to protect the reputation of the RSL sector as being well-governed.

The landlord can ask for a review or appeal our decision to make appointments. We will normally proceed with the appointments pending the outcome of the review or appeal.

A person can be appointed to a governing body even if the RSL’s constitution contains a restriction on such an appointment; for instance if the constitution sets a maximum number of governing body members or if the constitution normally prohibits the appointment of non-members. There is no limit to the number of appointees that can be made by the Regulator.

We will establish that the potential appointees have no conflicts of interest which would prevent their appointment. Proposed appointees may need to obtain their employer's approval to the appointment.

We will normally appoint a minimum of two to three appointees, but the number may be greater depending on the nature of the problems and the RSL and what is needed to effect the necessary improvements. Appointing more than one appointee means there should always be an appointee presence at governing body meetings even if an individual appointee is not able to attend every meeting.

We will set out in writing to the RSL the name of the appointees, the start date and period of appointment, and the purpose of their appointment. We will also set out these details to the appointees. We will expect the appointees to attend the RSL’s governing body meetings wherever they are held.

We will provide these details so that the RSL is clear about what is going to happen, what we expect and to ensure it makes preparations for the appointees. We will arrange to meet with the governing body to introduce the appointees, explain their role, and to answer any questions the governing body may have. The RSL should (other than in exceptional circumstances that are agreed with us) provide an induction process to appointees and access to key governance and management documents and all relevant information and briefing about the organisation to the appointees.

We will brief the appointees about the issues of concern at the RSL and their role on the governing body. We will ask the appointees to meet with us on a regular basis and update us on progress on matters relating to their remit.  

We will expect the appointees’ conduct to be in accordance with our issued remit, our Regulatory Standards of Governance and Financial Management, and relevant good practice and codes of governance. We will require the appointees to confirm their acceptance of the terms and conditions of the appointment. We will provide a named point of contact to the appointees and appointees can contact us at any time for advice.

6.3 Period of appointment

It is for the Regulator to determine the period of appointment of the appointees (section 65 (2) of the 2010 Act). Where we make an appointment in order to rectify a failure by an RSL, the appointment will be for the period necessary to rectify the failure.

The appointment will be subject to such terms and conditions as we deem necessary and appropriate to enable the appointee to fulfil the remit. The terms and conditions may vary from case to case however we would be likely to set out details about the start and end of the appointment, the time commitment required, and any review arrangements when making any appointment.

6.4 Powers of appointees

An appointee’s functions and responsibilities on the governing body are identical to those of other members. The appointees will have the full authority and legal status of a governing body member of the RSL. Appointees have the same rights as other governing body members to receive notices and papers for all meetings and can act as the Chair or take on other office bearer roles. Appointees are appointed under statute and are not required to be elected at an Annual General Meeting but must be invited to attend.

Appointed governing body members have a statutory entitlement to:

  • attend, speak and vote at any general meeting of the RSL;
  • move a resolution at any general meeting;
  • require a general meeting to be convened within 21 days of a written request being made to the RSL; and
  • resign or retire in accordance with the RSL’s constitution.

6.5 The appointees’ role

Essentially we will expect the appointees to strengthen and support the governing body to address the RSL’s problems and make progress so that statutory intervention is no longer required. We will provide the appointees with a remit for their appointment and share this with the RSL's governing body. This remit will reflect the reasons for the intervention.

Depending on these reasons the appointees’ remit may include but is not limited to the following:

  • assisting the governing body to develop and implement an action plan which addresses any serious and immediate risks to the RSL’s governance and financial management position and to ensure that these issues are resolved;
  • considering whether the current governance and financial management processes and procedures are fit for purpose and supporting the governing body to ensure that the RSL’s affairs are managed to meet the Regulatory Standards of Governance and Financial Management;
  • ensuring that the governing body is able to lead the organisation and that any decisions are taken in the best interests of the organisation and its tenants; this includes ensuring the appropriate level of challenge to any decision making;
  • supporting the appointed manager (if applicable) to deliver the overall recovery strategy for the organisation; and
  • exercising the powers given under section 65(6) of the 2010 Act as they consider appropriate.

When making an appointment we develop the remit for appointees which will include high level actions such as those set out above. Appointees operate independently of us in fulfilling the remit although we expect them to report back to us on their progress.

Although appointees may contribute specialised knowledge, experience or skills, their role is not to act as consultants. The governing body should decide if specialist consultants are needed and, if so, take steps to engage them.

Equally it is not part of the duties of appointees to undertake the work of the staff or agents of an RSL. If the RSL's problems are attributable to the performance of staff and/or agents, it is the governing body's responsibility to take the necessary steps to remedy the situation.

We will require the appointees to notify us of any issues of regulatory concern, even if such issues do not form part of their original remit.

Appointees should not make public comment about the RSL or their role, but should work within the RSL’s own communications plan and refer any press enquiries to the RSL or to the Scottish Housing Regulator as appropriate.

6.6  Communications

It is important that when we use statutory powers to intervene in a landlord that we are transparent about the risks and concerns which led to the intervention, what powers we have used and what we intend to achieve by the intervention. We will liaise with the RSL about our decision and then update the landlord’s Engagement Plan to confirm our statutory appointments and our planned engagement with the RSL and will normally issue a news release to highlight our action. If the landlord is an RSL we will update its regulatory status to ‘Statutory action’.

We will expect the governing body to communicate the position to staff, tenants and stakeholders and, where appropriate, to notify its lenders of the change to its regulatory engagement level and the reason for this.

We will contact any public funders and other key stakeholders such as secured creditors, relevant local authorities, the Office of the Scottish Charity Regulator, Scottish Government, and the landlord’s representative body to advise about the intervention. We will send our Engagement Plan and news release to other stakeholders including local MPs and MSPs.

At the conclusion of the intervention we will publish a report about the issues which led to the intervention, the purpose of the intervention, and what the intervention has achieved. We will aim to do this within three months of the intervention ending.

6.7 Review arrangements

We will regularly review the RSL’s progress, the effectiveness of our intervention and the appointees’ remit. We will expect the appointees to report directly to us on progress with their remit on a regular basis.

We may decide to extend the appointments or increase the number of appointees if insufficient progress has been made, or we may consider other statutory options. If we are satisfied that the intervention has been successful and the RSL has addressed the problems that led to intervention, then we will bring the appointments to an end.

If an appointee resigns, or does not wish to continue if we propose an extension of the appointment, we may make a replacement appointment. We will give formal notification of the termination of appointments to the appointees and the RSL.

At the end of their appointments, appointees are free to be co-opted by the governing body or to fill casual vacancies in accordance with the RSL's constitution, should the governing body wish. Former appointees can also seek membership of the RSL and election to the governing body if they wish, provided that they meet the relevant eligibility criteria in the RSL's constitution.

6.8 Complaints about Appointees

A complaint about the conduct, treatment by or attitude of an Appointee should be made to us as set out in Appendix 2. A complaint should be made to us because we have made the appointment and have the power to take action to resolve the complaint including ending the appointment if necessary.

We will consider any complaints about an Appointee in accordance with the process set out at Appendix 2. If we will decide to uphold the complaint we will consider whether the Appointee has failed to work in accordance with the terms and conditions of the appointment and whether it is necessary to terminate the appointment.

To make a complaint about an Appointee please follow the process set out in Appendix 2.

6.9 Payment of the appointees

Under section 65(5) of the 2010 Act it is for the RSL to pay the appointees’ remuneration and expenses in line with the determination made by the Regulator as to the terms of appointees' remuneration and expenses. The appointees will make any claims in respect of payment and expenses direct to the RSL. The RSL should pay expenses in accordance with its policies and procedures. Most RSLs do not pay their governing body members, so ordinarily appointees will only receive their expenses in the same way as their fellow governing body members. We do not expect appointees to be specifically remunerated for their role as appointees.

Appointed governing body members are entitled to be sure they will not be put at personal or financial risk where they have acted reasonably, responsibly and in good faith in fulfilling their duties as governing body members. Where an RSL has insurance in place for governing body members, it should ensure the same protection is extended to the appointees. We may require the RSL to purchase and maintain personal indemnity insurance for the appointees (Housing (Scotland) Act 2010 section 65(3)).

Restricting dealings

Below we set out what we will do when we restrict dealings (i.e. the financial activities) of an RSL during or following inquiries and what the RSL can expect when we exercise this power. This is a statutory power which only applies to RSLs. We may use this power on its own or in conjunction with other interventions.

7.1 What’s in the Act

The powers to restrict dealings are set out under section 66 of the 2010 Act. The Regulator may restrict the dealings of an RSL when making or having made inquiries if we consider:

  • there has been misconduct or mismanagement in the RSLs financial or other affairs;
  • that the interests of an RSL's tenants need protection;
  • that an RSLs assets need protection; or
  • that an RSLs financial viability is in jeopardy.

We can direct an RSL not to make particular transactions or payments without our consent. We can also direct a bank or another entity which holds an RSL's assets not to dispose of them without our consent.

7.2 Restricting dealings

The types of situation where we may restrict dealings include where we find serious misconduct such as individuals benefitting inappropriately from the RSL’s funds, or if an RSL has or plans to enter into contracts which may put the RSL’s financial viability at risk. If we need to act quickly we can restrict an RSL's dealings while we are conducting our inquiries.

The landlord can ask for a review or appeal our decision to restrict its dealings. We will normally proceed with the restriction pending the outcome of the review or appeal.

We will set out in writing to the RSL the reason for the restriction, which dealings are being restricted, the time period for which the restriction will remain in place and what it must do while the restriction is in place. If the restriction will have the effect of restricting another body or individual (such as if we have decided to it is necessary to direct an RSL’s lender not to make certain payments from an RSL's funds) we will also write to that body or individual to set out the details of the restriction, We will make clear to the RSL and stakeholders what is going to happen and the requirements for compliance with the restriction.

We will normally arrange to meet with the governing body to discuss the restriction and to answer any questions the governing body may have. We will also arrange to meet stakeholders affected by the restriction such as secured creditors to brief them on our action.

We will seek to obtain the information we require about an RSL's financial affairs to allow us to manage the restriction. Where necessary, we will use our statutory powers to secure this information.

7.3 Period of the restriction

It is for the Regulator to determine the time period the restriction will remain in place. We will normally put the restriction in place for a fixed time period. We will consider what time period is necessary and appropriate to secure the statutory objectives in section 66 of the 2010 Act. We will keep the need for the restriction under review and will bring it to an end as soon as we are assured that it is no longer necessary. At the end of the fixed time period we may decide it is necessary to extend the restriction if the issues which gave rise to the restriction have not been addressed or if further concerns have come to light. We may also consider use of other statutory powers of intervention.

 7.4 Impact of the restriction

During the time period of the restriction the RSL may not undertake certain transactions as detailed in the restriction without our consent. If we have decided to direct the RSLs lender or anyone who holds assets for the RSL not to dispose of the RSLs assets without our consent then they similarly may not dispose of those assets without our consent.

It is a criminal offence to fail to comply with a restriction. As provided for in section 66(4) of the 2010 Act, a person guilty of such an offence could be imprisoned, fined or both.

7.5 Communications

It is important that when we use statutory powers to restrict an RSL's dealings that we are transparent about the risks and concerns which led to the intervention, what powers we have used and what we intend to achieve by the intervention. We will liaise with the RSL about our decision and then update the landlord’s Engagement Plan to confirm our intervention and our planned engagement with the RSL and will normally issue a news release to highlight our action. If the landlord is an RSL we will update its regulatory status to ‘Statutory action’.

We will expect the governing body to communicate the position to staff, tenants and stakeholders and, where appropriate, to notify its lenders of the change to its regulatory engagement level and the reason for this.

We will contact any public funders and other key stakeholders such as secured creditors, relevant local authorities, the Office of the Scottish Charity Regulator, Scottish Government, and the landlord’s representative body to advise about the intervention. We will send our Engagement Plan and news release to other stakeholders including local MPs and MSPs.

We will engage directly with any parties directly affected by the restriction for example if we have directed the RSL's lender not to dispose of the RSLs assets without our consent.

At the conclusion of the intervention we will publish a report about the issues which led to the intervention, the purpose of the intervention, and what the intervention has achieved. We will aim to do this within three months of the intervention ending.

7.6 Review arrangements

We will keep the need for the restriction under review and will bring it to an end as soon as we are assured it is no longer necessary.

We may decide it necessary to extend the restriction if the issues which gave rise to the restriction have not been addressed or if further concerns have come to light. We may also consider other statutory interventions.

When we bring the restriction on dealings to an end we will review the RSL’s regulatory status and update its Engagement plan. We will also publish a news release and communicate with key stakeholders such as secured creditors.

Suspending a governing body member

Below we set out what we will do when we suspend a governing body member of an RSL during or following inquiries and what the suspended governing body member and the RSL can expect. This is a statutory power which only applies to RSLs. We may use this power on its own or in conjunction with other powers such as those to appoint a manager or appoint new governing body members.

8.1 What’s in the Act

The power to suspend a governing body member is contained within section 61 of the 2010 Act. We may suspend a governing body member of an RSL when making or having made inquiries if we consider:

  • that the RSL has or is failing to comply with a duty imposed by the 2010 Act or a requirement imposed by the Regulator on the landlord relating to its housing activities or financial or other affairs; or
  • that the governing body member is obstructing or not co-operating in relation to specified processes associated with insolvency.

8.2 Suspending a governing body member

The types of situation where we may suspend a governing body member during our inquiries into an RSL include if we have a concern that the governing body member has facilitated or contributed to, or been privy to breach of an RSL’s obligations and needs to be suspended in order that the integrity of our inquiry is not jeopardised, or to prevent further breaches. Or if we consider an RSL had been financially mismanaged and a governing body member is continuing to expose the RSL to risk.

We may also suspend a governing body member after we have concluded inquiries in a variety of circumstances, such as if we make a finding of misconduct.

We will normally give a governing body member and the relevant RSL 14 days’ notice of an intended suspension but we may suspend a governing body member without notice if we need to act urgently. We will set out in writing to the suspended governing body member: the reason for the suspension, the time period the suspension will remain in place and what they must do (and/or refrain from doing) while the suspension is in place. Normally, we will also advise the suspended governing body member as to whether we have concluded our inquiries into the misconduct or mismanagement or if our inquiries are ongoing.

We will write to the RSL to inform it about the suspension. We may also direct the RSL to recover any assets such as credit cards or IT equipment from the individual. While the suspension is in place the RSL should not send papers for meetings or seek to involve the suspended individual in the business of the RSL.

A suspended governing body member can ask for a review or appeal our decision. We will normally proceed with the suspension pending the outcome of the review or appeal.

The suspended governing body member also has the right under section 64 of the 2010 Act to appeal to the Court of Session against our decision to suspend.

8.3 Period of the suspension

It is for the Regulator to determine the time period for which the suspension will remain in place. We will normally impose a period of suspension for a fixed time period.

At the end of the set time period we may decide it is necessary to extend the suspension. An extension may be necessary, for example, if we have not concluded our inquiries.

If we don’t fix any time period a suspension will come to an end six months after our inquiries are concluded.

We will consider what time period is necessary and appropriate for any suspension. We will keep the need for the suspension under review and will bring it to an end when we have concluded our inquiries and decided if any further steps are required to protect tenants interests, or, when we decide it is no longer necessary. Further steps may include taking action to remove the governing body member under section 62 of the 2010 Act if our inquiries have found evidence of serious misconduct or mismanagement by the suspended governing body member.

8.4 Impact of the suspension

During the time period of the suspension the suspended governing body member may not take part in the management or control of the RSL without our consent. This means they can’t perform any of their duties as a governing body member such as attending committee meetings or taking part in any decisions or transactions. If we have decided to direct the RSL to recover the RSLs assets from the individual, the RSL must ensure the assets are recovered and confirm to us this has happened.

It is a criminal offence for a suspended individual to take any action in relation to the management or control of the RSL during the period of the suspension without our consent. An individual guilty of such an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

8.5 Communications

It is important that when we use statutory powers to suspend a governing body member that we are transparent about the risks and concerns which led to the intervention, what powers we have used and what we intend to achieve by the intervention. We will liaise with the RSL and governing body member about our decision and then update the landlord’s Engagement Plan to confirm our intervention and our planned engagement with the RSL and will normally issue a news release to highlight our action. We will exercise our judgement in relation to whether to update the RSL's regulatory status in light of the suspension of governing body member(s).

We will expect the governing body to communicate the position to staff, tenants and stakeholders and, where appropriate, to notify its lenders of the intervention and the reason for this.

We may contact any public funders and other key stakeholders such as secured creditors relevant local authorities, the Office of the Scottish Charity Regulator, Scottish Government, and the landlord’s representative body to advise about the intervention. We will send our Engagement Plan and news release to other stakeholders including local MPs and MSPs.

At the conclusion of the intervention we will publish a report about the issues which led to the intervention, the purpose of the intervention, and what the intervention has achieved. We will aim to do this within three months of the intervention ending.

8.6 Review arrangements

We will keep the continued need for the suspension under review and bring this to an end when we have concluded our inquiries and decided if any further steps are required to protect tenants interests or determined that suspension of the governing body member is no longer necessary.

We may decide to extend the suspension if our inquiries have not been concluded. We may also consider other statutory interventions.

When we bring a suspension to an end we will update the RSL's Engagement plan. We will also normally publish a news release and communicate with key stakeholders such as secured creditors.

 

Transfer of assets

Below we set out what we will do when we direct an RSL to transfer its assets to another RSL. This is a statutory power which only applies to RSLs. We are likely to use this power in conjunction with, or succession to, other powers such as the power to appoint a manager and appointees to the governing body.

9.1 What’s in the Act

The power to direct an RSL to transfer its assets to another RSL is set out under section 67 of the 2010 Act. We may use this power where having made inquiries we consider:

  • that there has been misconduct or mismanagement in an RSL's financial or other affairs; or
  • that an RSL’s viability is in jeopardy for financial or governance reasons or because it cannot provide housing services to an acceptable standard.

We can direct the RSL to transfer either some or all of its assets to another RSL. We can do so of our own volition, or at the request of an RSL that wishes us to direct the transfer of its assets to another RSL.

We can only use our power to direct the transfer of assets where we consider that a transfer of some or all of an RSL's assets will improve the management of the RSL's assets.

9.2 Directing a transfer

In general, our objective when considering directing a transfer is to protect tenants’ interests and ensure they have the security of having their homes managed by a well-run RSL which provides high quality, well-run services. Requiring an RSL to transfer its assets is one of the most significant powers we have. In the past we have used this power very rarely, typically in situations where there were very serious governance and/or financial management weaknesses and the RSL’s viability was in jeopardy.

We will set out in writing to the RSL the reason for the direction, which assets must be transferred, which RSL the assets must be transferred to, and when the transfer must take place.

We will seek to meet with the governing body of the RSL to discuss the direction and to answer any questions the governing body may have. We will also seek to meet stakeholders affected by the direction such as secured creditors to brief them on our action.

The landlord can ask for a review or appeal our decision to direct a transfer.

9.3 Impact of the direction

An RSL which is the subject of a direction must arrange to transfer all of the assets set out in the direction notice within the time period provided for in the notice. This is likely to include its homes and any financial assets it holds, for example in its bank accounts. The transfer may also include any contracts the RSL has in place, including employment contracts.

The terms of the direction will provide for the settlement or transfer of all the RSL's proper debts and liabilities in respect of the assets being transferred.

During any directed transfer, it is important that an RSL’s legal obligations as an employer are carefully managed, we recognise this will be a challenging time for staff and will seek assurance the RSL is managing its duties appropriately.

As part of the transfer process, we will ask the RSL for records of all of its assets and liabilities, the RSL must provide us with the information we require about its assets to allow us to manage the direction. We will use our statutory powers to secure this information should that be necessary.

9.4 Selecting a prospective landlord

Our objective when selecting a prospective landlord is to ensure tenants’ rights are protected and that we are confident the prospective landlord will look after tenants’ homes and deliver high quality, well-run services. The prospective landlord will be an RSL and if the transferring landlord is a charity, a charitable RSL.

When considering a directed transfer we will normally carry out a process to select a prospective landlord by inviting a number of RSLs to submit a bid. In exceptional circumstances such as where we consider the risks to tenants' interests mean the transfer process must be carried out very quickly we may select one RSL and engage directly with it about its capacity to address the identified weaknesses and protect tenants' interests. Where the (transferring) RSL has already carried out a robust process to identify a transfer partner and we have confidence in the selected RSL’s capacity, we will consider whether a directed transfer to the selected RSL would be appropriate without the need for a bid exercise.

To date we have carried out two directed transfers, in the first directed transfer we carried out an exercise to identify a suitable prospective landlord. We identified a number of RSLs we knew from our risk assessment provided good services to tenants and we were confident had the capacity to address the identified weaknesses in the (transferring) RSL.

We identified criteria to help us select the receiving RSL based on what was important to tenants such as rents, repairs, and opportunities for tenant involvement. We invited the RSLs to submit a proposal which set out how they would deliver on the identified criteria, evaluated these bids against the criteria and selected a landlord whose bid best met the criteria. We then consulted tenants about a transfer to the selected social landlord including providing the support of an independent tenant advisor.

In the second directed transfer, the RSL had already decided to transfer to another landlord and had carried out a robust process to select an RSL to transfer its homes to. The RSL had consulted tenants including conducting a tenant ballot and tenants had voted in favour of the transfer. We were therefore satisfied that tenants supported the transfer to the selected landlord. We were confident that a transfer to the selected landlord would protect tenants interests and after having carried out our own consultation process we decided to direct a transfer to the selected landlord.

9.5 Consultation

Our statutory guidance Consultation where the Regulator is directing a transfer of assets explains:

  • how we will consult tenants and secured creditors when we are directing a transfer of assets (including homes) to another RSL;
  • the circumstances in which we will not consult;
  • the actions we would take in those circumstances; and
  • how we communicate with tenants, RSLs and secured creditors in those situations in which we don’t consult.

Section 67 of the 2010 Act requires that before directing a transfer of assets we must consult tenants affected by the transfer and any secured creditors. If the RSL is charitable we must also consult the Office of the Scottish Charity Regulator and have regard to the views expressed before making our decision to direct a transfer.

As part of our consultation process with tenants, we will engage with tenants to give them full information about the proposed directed transfer including the reasons for the proposed transfer, the proposed landlord and what the transfer will mean for them. We will also explain the consultation process and how tenants can give us their views.

During the consultation process we will provide tenants with an opportunity to consider the proposals and tell us their views, we will generally aim to ensure the consultation period is for at least 28 days. We will also provide free, independent advice to support tenants to fully engage in the consultation process.

We will have regard to the views expressed by tenants when making a decision about a proposed directed transfer.

We will also consult secured creditors when we are considering directing a transfer of an RSL’s assets. We will normally discuss the proposed recovery strategy with secured creditors and where possible we will involve the RSL in these discussions.

There may be a limited number of cases where it is clear there is an imminent threat to an RSL's financial viability and where there is insufficient time to consult tenants. In these situations we have the power to set aside the requirement to consult with tenants and secured creditors. Where in order to protect the interest of tenants and prevent an RSL's insolvency we require to act quickly and are therefore unable to consult tenants we will always advise them of the reason why we decided it was not appropriate to consult. We will also ensure that tenants are made aware that we have decided to direct a transfer, the reasons for this decision, and the implications for them.

There are very limited circumstances in which it might be necessary to set aside the requirement to consult secured creditors. Where there are a small number of creditors involved in an RSL, even where that RSL is in financial jeopardy, we anticipate it should be possible to conclude the consultation process quickly and in a way that does not delay the transfer.

9.6 De-registration

If we have directed an RSL to transfer all of its assets, following the transfer it will no longer meet the registration criteria for social landlords in the 2010 Act and we will seek to remove it from the Register of Social Landlords.

We can remove the RSL from the Register as a compulsory de-registration or as a voluntary de-registration.

Section 27 of the 2010 Act gives us the power to compulsorily remove a body from the Register if we consider it:

  • no longer meets (or has never met) the registration criteria;
  • has ceased to carry out activities; or,
  • has ceased to exist.

Before we compulsorily de-register an RSL we will write to the RSL to explain we are considering de-registering it, the reasons for this and ask it for information demonstrating it still meets the registration criteria. We will have regard to the RSL's views before we make a decision in relation to de-registration.

RSLs can also seek to voluntarily de-register under section 28 of the 2010 Act. Our regulatory framework sets out criteria to be met for voluntary de-registration. In this situation we would assure ourselves that the interests of tenants are safeguarded and the de-registration criteria are met before making our decision.  

An RSL can ask for a review or appeal our decision to decide to remove it from the Register. We will not proceed with the de-registration pending the outcome of a review or appeal. If no appeal is received within the set timescale we will remove the RSL from the Register.

9.7 Communications

It is important that when we use statutory powers to intervene in a landlord that we are transparent about the risks and concerns which led to the intervention, what powers we have used and what we intend to achieve by the intervention. We will liaise with the RSL about our decision and then update the RSL’s Engagement Plan to confirm our intervention and our planned engagement with the RSL and will normally issue a news release to highlight our action. We will update the RSL’s regulatory status to ‘Statutory action’.

We will expect the governing body to communicate the position to staff, tenants and stakeholders and, where appropriate, to notify its lenders of the intervention and the reason for this.

In addition to our engagement with statutory consultees as set out at section 9.5 we will contact any public funders and other key stakeholders such as relevant local authorities, the Financial Conduct Authority (if the RSL is a Registered Society) or Companies House (if the RSL is a Company), Scottish Government, and the landlord’s representative body to advise about the intervention. We will send our Engagement Plan and news release to other stakeholders including local MPs and MSPs.

We will engage with the receiving RSL about its delivery of any commitments it made to tenants.

At the conclusion of the intervention we will publish a report about the issues which led to the directed transfer, and what the intervention has achieved. We will aim to do this within three months of the intervention ending.

Review

We have published this note to provide information about how we will apply five of our intervention powers. We hope this helps to explain our role and what we will do. We will keep this note under review and welcome any comments or feedback.

 

Appendix 1: Making a complaint about a statutory manager

A complaint about a statutory manager should be made to the Scottish Housing Regulator. A complaint can be made to us verbally or in writing, including face-to-face, by phone, letter or email.

The Scottish Housing Regulator has a Complaints Handling Procedure (CHP) and has developed this appendix to explain how a complaint about a statutory manager will be handled.

We will try to resolve complaints to the satisfaction of the customer wherever this is possible. Where this isn’t possible, we will give the customer a clear response to each of their points of complaint. We will always try to respond as quickly as we can.

The customer must raise their complaint within six months of when they first knew of the problem, unless there are special circumstances for considering complaints beyond this time (such as serious illness or bereavement). Where a customer has received a stage 1 response and wishes to escalate to stage 2 unless there are special circumstances they must request this either:

  • within six months of when they first knew of the problem; or
  • within two months of receiving their stage one response (if this is later)

We will apply these time limits with discretion taking into account the seriousness of the issue, the availability of relevant records, how long ago the events occurred, and the likelihood that an investigation will lead to a practical benefit for the customer or useful learning for the organisation.

Our complaints procedure has two stages. We expect the majority of complaints will be handled at Stage 1. If the customer remains dissatisfied after Stage 1, they can request that we look at it again, at Stage 2. If the complaint is complex enough to require an investigation, we will put the complaint into stage 2 straight away and skip Stage 1.

Stage 1: Frontline response

For issues that are straightforward and simple, requiring little or no investigation

‘On-the-spot’ apology, explanation, or other action to put the matter right

Complaint resolved or a response provided in five working days or less (unless there are exceptional circumstances)

Complaints addressed by the Engagement Plan lead

Response normally face-to-face or by telephone (though sometimes we will need to put the decision in writing)

We will tell the customer how to escalate their complaint to stage 2

Stage 2: Investigation

Where the customer is not satisfied with the frontline response, or refuses to engage at the frontline, or where the complaint is complex, serious or high risk

Complaint acknowledged within three working days

We will contact the customer to clarify the points of complaint and outcome sought (where these are already clear, we will confirm them in the acknowledgement)

Complaint resolved or a definitive response provided within 20 working days following a thorough investigation of the points raised

Assistant Director investigates Stage 2 complaints and reports to Director of Regulation

Director of Regulation makes the final decision about what action will be taken

Independent external review (SPSO or other)

Where the customer is not satisfied with the stage 2 response from the service provider

The SPSO will assess whether there is evidence of service failure or maladministration not identified by the service provider

Stage 1 complaints will be considered by the engagement plan lead. The engagement plan lead will consider the complaint and take action including arranging for an apology, explanation or other appropriate action that may be required. Other than in exceptional circumstances we will respond to Stage 1 complaints within 5 working days

Complex complaints and complaints that are not resolved at Stage 1 will be escalated to Stage 2 Investigation. Complaints which are escalated to Stage 2 will be investigated by an Assistant Director in the Regulation Group within SHR. An Assistant Director with no previous involvement in the statutory intervention and is independent of the situation will be selected to lead the investigation. We will respond to Stage 2 complaints within 20 working days.

Following investigation the Assistant Director will decide what action is required to resolve the complaint. This may be:

  • an explanation;
  • an apology;
  • ending the statutory manager appointment.

The Assistant Director will recommend action to resolve the complaint to the Director of Regulation who will make the final decision and communicate this to the customer and the statutory manager.

After we have given our final decision, if the customer is still dissatisfied with our decision or the way we dealt with their complaint, they can ask the Scottish Public Services Ombudsman (SPSO) to look at it.

The SPSO are an independent organisation that investigates complaints. They are not an advocacy or support service (but there are other organisations who can help you with advocacy or support).

You can ask the SPSO to look at your complaint if:

  • you have gone all the way through the SHR's complaints handling procedure
  • it is less than 12 months after you became aware of the matter you want to complain about; and
  • the matter has not been (and is not being) considered in court.

The SPSO will ask you to complete a complaint form and provide a copy of our final response to your complaint. You can do this online at www.spso.org.uk/complain/form or call them on Freephone 0800 377 7330.

You may wish to get independent support or advocacy to help you progress your complaint. See the section in our CHP Getting help to make your complaint.

The SPSO’s contact details are:

SPSO

Bridgeside House

99 McDonald Road

Edinburgh

EH7 4NS

(if you would like to visit in person, you must make an appointment first)

Their freepost address is:

FREEPOST SPSO

Freephone: 0800 377 7330

Online contact: www.spso.org.uk/contact-us

Website: www.spso.org.uk

We will take action to improve services on the basis of complaint findings, where appropriate. We record details of all complaints, the outcome and any action taken, and use this data to analyse themes and trends. Senior management have an active interest in complaints and use complaints data and analysis to improve services. Learning from complaints is also shared within the organisation.

Appendix 2: Making a complaint about a statutory appointee

A complaint about a statutory appointee should be made to the Scottish Housing Regulator. A complaint can be made verbally or in writing, including face-to-face, by phone, letter or email.

The Scottish Housing Regulator has a Complaints Handling Procedure (CHP) and has developed this appendix to explain how a complaint about a statutory appointee will be handled.

We will try to resolve complaints to the satisfaction of the customer wherever this is possible. Where this isn’t possible, we will give the customer a clear response to each of their points of complaint. We will always try to respond as quickly as we can.

The customer must raise their complaint within six months of when they first knew of the problem, unless there are special circumstances for considering complaints beyond this time (such as serious illness or bereavement). Where a customer has received a stage 1 response and wishes to escalate to stage 2 unless there are special circumstances they must request this either:

  • within six months of when they first knew of the problem; or
  • within two months of receiving their stage one response (if this is later)

We will apply these time limits with discretion taking into account the seriousness of the issue, the availability of relevant records, how long ago the events occurred, and the likelihood that an investigation will lead to a practical benefit for the customer or useful learning for the organisation.

Our complaints procedure has two stages. We expect the majority of complaints will be handled at Stage 1. If the customer remains dissatisfied after Stage 1, they can request that we look at it again, at Stage 2. If the complaint is complex enough to require an investigation, we will put the complaint into stage 2 straight away and skip Stage 1.

Stage 1: Frontline response

For issues that are straightforward and simple, requiring little or no investigation

‘On-the-spot’ apology, explanation, or other action to put the matter right

Complaint resolved or a response provided in five working days or less (unless there are exceptional circumstances)

Complaints addressed by the Engagement Plan lead

Response normally face-to-face or by telephone (though sometimes we will need to put the decision in writing)

We will tell the customer how to escalate their complaint to stage 2

Stage 2: Investigation

Where the customer is not satisfied with the frontline response, or refuses to engage at the frontline, or where the complaint is complex, serious or high risk

Complaint acknowledged within three working days

We will contact the customer to clarify the points of complaint and outcome sought (where these are already clear, we will confirm them in the acknowledgement)

Complaint resolved or a definitive response provided within 20 working days following a thorough investigation of the points raised

Assistant Director investigates Stage 2 complaints and reports to Director of Regulation

Director of Regulation makes the final decision about what action will be taken

Independent external review (SPSO or other)

Where the customer is not satisfied with the stage 2 response from the service provider

The SPSO will assess whether there is evidence of service failure or maladministration not identified by the service provider

Stage 1 complaints will be considered by the engagement plan lead. The engagement plan lead will consider the complaint and take action including arranging for an apology, explanation or other appropriate action that may be required. Other than in exceptional circumstances we will respond to Stage 1 complaints within 5 working days (unless there are exceptional circumstances).

Complex complaints and complaints that are not resolved at Stage 1 will be escalated to Stage 2 Investigation. Complaints which are escalated to Stage 2 will be investigated by an Assistant Director in the Regulation Group within SHR. An Assistant Director with no previous involvement in the statutory intervention and is independent of the situation will be selected to lead the investigation. We will respond to Stage 2 complaints within 20 working days.

Following investigation the Assistant Director will decide what action is required to resolve the complaint. This may be:

  • an explanation;
  • an apology;
  • ending the statutory appointment.

The Assistant Director will recommend action to resolve the complaint to the Director of Regulation who will make the final decision and communicate this to the customer and the statutory manager.

After we have given our final decision, if the customer is still dissatisfied with our decision or the way we dealt with their complaint, they can ask the Scottish Public Services Ombudsman (SPSO) to look at it.

The SPSO are an independent organisation that investigates complaints. They are not an advocacy or support service (but there are other organisations who can help you with advocacy or support).

You can ask the SPSO to look at your complaint if:

  • you have gone all the way through the SHR's complaints handling procedure
  • it is less than 12 months after you became aware of the matter you want to complain about; and
  • the matter has not been (and is not being) considered in court.

The SPSO will ask you to complete a complaint form and provide a copy of our final response to your complaint. You can do this online at www.spso.org.uk/complain/form or call them on Freephone 0800 377 7330.

You may wish to get independent support or advocacy to help you progress your complaint. See the section in our CHP Getting help to make your complaint.

The SPSO’s contact details are:

SPSO

Bridgeside House

99 McDonald Road

Edinburgh

EH7 4NS

(if you would like to visit in person, you must make an appointment first)

Their freepost address is:

FREEPOST SPSO

Freephone: 0800 377 7330

Online contact: www.spso.org.uk/contact-us

Website:www.spso.org.uk

We will take action to improve services on the basis of complaint findings, where appropriate. We record details of all complaints, the outcome and any action taken, and use this data to analyse themes and trends. Senior management have an active interest in complaints and use complaints data and analysis to improve services. Learning from complaints is also shared within the organisation.

 

Back to top