How to request a review of a regulatory decision or an appeal of a regulatory decision

Introduction

1.1

We are committed to being as transparent, open and accessible as we can be in our work, having regard to the legislation within which we operate. The Housing (Scotland) Act 2010 (which we refer to as the ‘2010 Act’) sets our objective, functions, duties and powers.

1.2

Those affected by our work have three avenues to challenge us directly, depending on the circumstances. These are:

• review – the quickest, most informal route, which we would encourage as the method of initial challenge in most cases, where the decision-maker and a more senior person look again at the decision;
• appeal – formal re-examination of certain regulatory decisions, carried out by people who are independent of the original decision-making; and
• complaint – using our existing two-stage internal process with the potential for recourse to the Scottish Public Services Ombudsman (SPSO) subject to the SPSO’s consideration of whether it is able to take action in the specific circumstances of the case.

This guidance covers requesting review or an appeal. Further information on how to make a complaint can be found here.

1.3

Alongside these routes, an individual or organisation may also seek a judicial review of our decisions or actions. Our review, appeals and complaints processes do not prejudice any subsequent judicial review or statutory appeal to the Court of Session. In other words, an organisation or an individual is not prevented from raising legal proceedings either because they have decided to ask, or have decided not to ask, for a review or a non-statutory appeal of a decision issued by us.

1.4

There are time limits for making a statutory appeal and for raising an action of judicial review. These time limits start running from the date on which we issue our decision. However, where an organisation or an individual asks for a review or a non-statutory appeal of a decision (and provided the appeal or review is valid) the time limit for raising legal proceedings will not start to run until we have issued a decision at the conclusion of the review or appeal.

How to request a review of a regulation decision

Why have a review process?

2.1

Our review process enables an individual, group of tenants or regulated body to ask us to look again at a regulatory decision which affects them. Our aim is for this process to be quick, straightforward and informal. This guidance sets out how this process works. Our review process offers additional opportunities for challenge, beyond those set out in the 2010 Act. This demonstrates our commitment to best practice in regulation and openness in our decision-making. This review process is part of our Regulatory Framework.

2.2

We would encourage this review process to be used as the first method of challenge in most cases, as part of an open and constructive dialogue about our decision and the reasons for it. We see the benefits of this in terms of speed and informality. You can also go straight to an appeal, should you wish to do so, for appealable decisions.

Which decisions can be reviewed and who can ask for a review?

3.1

Our Regulatory Framework explains how we regulate, with our power and duties under the 2010 Act as the keystone. All of our regulatory decisions can be subject to review.

3.2

A review can be requested by an individual, group of tenants or regulated body that is directly affected by the decision. The review process is an opportunity for them to tell us their concerns about the decision, ask us to look at it again, and for us to explain our thinking. Some examples of possible situations are provided below. These lists are not exhaustive. 

A regulated body might ask for a review where:

• we have made a statutory regulatory decision, for example using our intervention powers under Part 5 of the 2010 Act, such as to appoint a manager to the landlord;
• it thinks that our approach to assessing risk in relation to its work, including any engagement plan or regulatory status we publish, is not consistent with our Regulatory Framework or our publication 'The risks we will focus on' which is published in November each year;
• it believes our engagement with it is not consistent with the approach we have set out in our publication How we work - dealing with potentially serious issues in RSLs; or
• it believes we have not published data and reports on the Scottish Social Housing Charter in line with what we say we will do in our Regulatory Framework.

An individual might ask for a review where we have made a decision to remove or suspend that individual from the governing body of a registered social landlord (‘RSL’). 

A group of tenants might ask for a review where:

• tenants believe that we did not comply with our published approach to considering a reported significant performance failure when we examined a case they put to us; or
• they believe we have not published data and reports on the Scottish Social Housing Charter in line with what we say we will do in our Regulatory Framework.

3.3

Reviews need to co-exist with our ability to take regulatory action quickly where necessary to protect tenants’ and service users’ interests. As such, our regulatory decision stands pending the review, and we will normally proceed to implement it. The one exception to this position is deregistration of an RSL. Due to the nature of this decision, we will put implementation on hold pending the outcome of the review. 

How do i request a review?

4.1

If you wish a review of a regulatory decision, as an individual (where applicable) or on behalf of a group of tenants or your regulated body, you can simply request it by telephone or in writing. You should submit your request within 10 working days of receiving notification of our decision. 

4.2

You can contact the SHR staff member you have been dealing with directly, or alternatively, you can email or write to the addresses on page ten. We will write to acknowledge and confirm our understanding of your request. We will help make sure you understand how the review process works and assist you where needed.

4.3

You should tell us why you believe that the decision is wrong and refer to any evidence that you think we should consider again. 

What happens once I have requested a review?

5.1

The officer who made the decision will look at it again, along with a more senior person, usually their line manager. They will look at the evidence the officer considered when making their original decision, along with any further information you have provided. They will aim to carry out the review and communicate the outcome within 10 working days from when you requested it. If we cannot meet this timescale, we will write to you to explain why and confirm an alternative date. 

5.2

When we tell you the outcome of the review, we will explain the reasons for our decision. You can request this confirmation in writing. 

5.3

The review can have two possible outcomes:

• to uphold the original decision; or
• to make a new decision.

5.4

At the conclusion of the review, we would halt or change the regulatory action in light of the second outcome.

5.5

If you remain unhappy with the decision made, and if it is an appealable decision, you can submit a formal request for an appeal in accordance with our published guidance. You can also go straight to submitting an appeal, without requesting a review first, should you wish to do so.

5.6

Should you be dissatisfied that we have not acted in accordance with our published policies, you may wish to make a complaint. Where a review has already been carried out, we will consider your complaint at stage two of our internal complaints handling process. The complaints process is not a mechanism for challenging how we have exercised our judgement in relation to a decision arising from regulatory activity. Our complaints handling procedure gives more information.  

5.7

If you remain dissatisfied once we have considered your complaint at stage two, you can take your complaint to the SPSO. It is for the SPSO to consider whether it is able to take action about your complaint in the specific circumstances of your case. 

5.8

The SPSO has the power to make recommendations to us once it has concluded its investigation of a complaint. It has no power to overturn our regulatory decisions.

How to request an appeal of a regulatory decision

Why have an appeals process?

6.1

Our appeals process enables individuals and regulated bodies to request a formal re‑examination of certain regulatory decisions we have made, considered by people who are independent of the original decision-making. Our aim is for this process to be simple, proportionate and cost-effective, minimising the extra call on resources for all involved and enabling us to consider appeals quickly. This guidance sets out which decisions can be appealed and how the process works.

6.2

We are committed to being as transparent, open and accessible as we can be in our work, having regard to the legislation within which we operate. The 2010 Act sets our objective, functions, duties and powers.  It established a statutory right of appeal to the Court of Session for specific decisions. These relate to the registration and deregistration of a RSL and the suspension or removal of an individual from an RSL. Beyond this, our enabling legislation has not established any wider specific statutory right of appeal against our regulatory decisions.

6.3

Our non-statutory appeals process covers a wider range of regulatory decisions and therefore offers additional opportunities for challenge, beyond those set out in the 2010 Act. This demonstrates our commitment to best practice in regulation and to the Scottish Regulators' Strategic Code of Practice.

6.4

This process is part of our Regulatory Framework.

Which decisions can be appealed and who can appeal?

7.1

Our Regulatory Framework explains how we regulate, with the 2010 Act’s powers and duties as the keystone. Our appeals process is available for those regulatory decisions that have the most significant and immediate impact on a regulated body or individual. These decisions all flow from our statutory powers; some can have a very significant impact on a landlord’s services and, for RSLs, on their governance or finance.

7.2

Appendix 1 sets out which specific decisions are appealable and who can appeal, with reference to the relevant sections in the 2010 Act, as amended by the Housing (Amendment) (Scotland) Act 2018.

7.3

In summary, regulated bodies can appeal our decision to:

• register or compulsorily de-register an RSL;
• set performance improvement targets specifying levels or standards of housing services landlords must aim to provide;
• set financial management or governance targets that RSLs must aim to achieve;
• arrange for a survey of the condition of a landlord’s housing;
• require a landlord to submit a performance improvement plan setting out how, and by when, it proposes to rectify or avoid a failure or other problem;
• serve an enforcement notice requiring the landlord to take action to rectify or avoid a failure or other problem, or to protect its tenants or assets;
• appoint, or require a landlord to appoint, a manager to manage its housing activities;
• appoint, or require an RSL to appoint, a manager to manage its financial affairs;
• appoint an individual to the governing body of an RSL;
• restrict an RSL’s dealings; and
• transfer an RSL’s assets following inquiries.

7.4

Landlords can also appeal our inquiry reports.

7.5

For some decisions, the individual who is directly affected can request an appeal, rather than the regulated body. An individual can appeal our decision to:

• remove them from the governing body of an RSL; and
• suspend them from an RSL during or following inquiries.

7.6

Appeals need to co-exist with our ability to take regulatory action quickly where necessary to protect tenants’ and service users’ interests. As such, our regulatory decision stands pending the appeal, and we will normally proceed to implement it. The one exception to this position is deregistration of an RSL. Due to the nature of this decision, we will put implementation on hold pending the outcome of an appeal.

How can I appeal and on what grounds?

8.1

If you wish to challenge one of the decisions set out above, as an individual (where applicable) or on behalf of your regulated body, you can submit an appeal to us. Your appeal must be submitted in writing. It should reach us within 15 working days of you receiving formal notification of our decision. If you believe the 15 day deadline will prove challenging, for example because of your internal governance arrangements, you should let us know as early as possible to help us plan and respond flexibly. In particular, please let us know in advance of the expiry of the 15 days whether you are likely to need more time.

8.2

You should send your appeals submission by email to shr@shr.gov.scot  or by post to the address on page ten (by recorded delivery). We will write to acknowledge that we have received your appeal within 5 working days. 

8.3

Your submission must clearly state which decision or decisions you are appealing. For regulated bodies, you must confirm in writing that the submission has been authorised by your governing body (for RSLs) or relevant committee (local authorities).

8.4

Regulatory decisions often require us to exercise professional judgement and discretion within the constraints of the legislation, our published regulatory framework and guidance. In order to fulfil our statutory objective, our appeals process must not compromise our ability to use evidence-based judgement and exercise regulatory discretion.

8.5

For this reason, for an appeal to be admissible for consideration it must be based on something more than disagreement with the decision. The appeal must meet one or more of the grounds set out overleaf.

8.6

You must explain clearly in your submission why you think the decision is wrong and which ground or grounds you believe are relevant. You must also provide all the supporting evidence you consider we need. This is what will be reviewed during the appeal. An appeal is not normally a fresh consideration of all the evidence relevant to the decision.

Grounds for appeal 

• Factual error: for example the decision is based on an incorrect assumption or factual inaccuracy in our assessment of the issues and the evidence provided demonstrates this.

• New evidence: relevant evidence has become available that the body making the appeal and those hearing the appeal agree is material to the decision.

• Decision did not follow procedures: for example we made the decision without following our own published procedures, for example using our powers proportionately as set out in our Regulatory Framework.

• Decision did not take account of relevant issues and / or took account of irrelevant issues: for example, we ignored material evidence and placed weight on information that had no bearing on the issue.

• Decision was so unreasonable that no reasonable person acting properly could have taken it: this ground recognises that, while decisions are subjective and decision-makers use discretion, it is possible that a decision could be beyond the range of responses open to a reasonable decision-maker.

What happens once I have appealed?

9.1

An Appeal Panel will be selected and your submission will be sent to the Panel members.  The Panel will be made up of:

• two Board members, selected by our Board Chair, one of whom will Chair the Panel’s discussions; and
• a third person who is not an SHR staff or Board member will also take part in all Panel meetings and discussions, as an advisory member of the Panel.

9.2

The selection of the independent advisor to the Panel will be carried out in accordance with our published process.  As an external party, this person cannot have any decision-making authority under the 2010 Act.  Their role is solely to advise the other two Panel members, who will make the Panel’s decision.

9.3

None of the Panel members will have had any involvement in the original decision, or in any subsequent review of that decision. They will be asked to formally confirm this, and to declare any conflicts of interest, at the outset of the process. Should a member have a conflict of interest, they will step down from the Panel and another person will be selected. 

9.4

The Panel will aim to convene for an initial discussion within 15 working days of us receiving your appeals submission.  This discussion can take place in person or by teleconference. The purpose will be to:

• decide whether the grounds for appeal have been met; and if so, to
• identify any further evidence required (either from you or from the decision-maker);
• identify any legal or other advice required; and
• decide whether there would be benefit in meeting with you and/or with SHR staff, and in hearing further oral evidence.

9.5

If the grounds for appeal have not been met, we will aim to write to you within 5 working days of the Panel’s discussion, to confirm this and explain the reasons.  The original decision will stand in these circumstances. 

9.6

If the grounds for appeal have been met, we will aim to write to you within 5 working days of the Panel’s discussion, to:

• confirm who the Panel members are;
• request any further evidence, with timescales for submission, or a meeting if required; and
• confirm when the Panel will reconvene to make its decision.

9.7

The Panel will also write formally to the decision-maker and any other relevant SHR staff to request evidence or a meeting if required.  The Panel may ask our Chief Executive or other senior staff to provide expert advice in relation to regulatory policy. 

9.8

Normally the Panel will meet to make its decision, and will communicate its decision to you, within 25 working days of us receiving your initial appeals submission.  However, this may take longer depending on the extent of additional evidence requested. If we need longer than 25 days, we will write to you to confirm an alternative timescale. 

9.9

We will confirm the outcome of the appeal in writing. Our letter will explainclearly the reasons for the Panel’s decision. 

What decisions can the Appeal Panel make?

10.1

An appeal can have three outcomes:

• to uphold the original decision;
• to make a new decision based on the evidence brought forward; or
• to refer the decision back to the decision-maker to reconsider, for example with a direction for the decision-maker to consider specific new evidence.

 10.2

At the conclusion of an appeal, we would halt the specific regulatory action in light of the second or third outcomes and reconsider our regulatory engagement.

10.3

We will publish the outcome of each appeal on our website with a brief summary of the case and the reasons for the decision made.

10.4

At the conclusion of an appeal, should you be dissatisfied that we have not acted in accordance with our published policies you may wish to make a complaint. You can take a complaint direct to the SPSO rather than using our internal complaints process, providing you are not bringing forward new evidence at that point. It is for the SPSO to consider whether it is able to take action about your complaint in the specific circumstances of your case. The complaints process is not a mechanism for challenging how we have exercised our judgement in relation to a decision arising from regulatory activity.

10.5

The SPSO has the power to make recommendations to us once it has concluded its investigation of a complaint. It has no power to overturn our regulatory decisions.

Appendix 1 - Regulatory decisions open to appeal