The social housing sector continues to evolve and diversify, working to meet increasing society needs in difficult times, responding to housing targets and dealing with a wide range of often complex issues - from land acquisition, construction and finance through to governance, data protection, employment and housing management.
At Thorntons, we have one of biggest social housing teams in Scotland, with our cross-disciplinary team including specialists across the firm to meet the full range of clients’ legal needs. We have been closely involved in the social housing movement since the 1960s, and the commitment to the sector continues to this day, with members of the team on housing association boards and Thorntons a member of the Scottish Federation of Housing Associations.
We regularly provide Registered Social Landlords with advice on land and stock acquisitions, and housing management, including contentious tenancy issues, and our full-service approach enables the team to handle a wide range of funding, procurement, corporate governance, employment and data protection issues. With all legal services in one place, clients can easily access all the legal advice and support they need.
Members of our team currently act for housing associations who together own or manage well over 100,000 homes and have worked with several of our housing association clients since their formation, including a community-led group supported by a local authority and a tenant-led association supported by the local authority and Scottish Homes. We also undertake work for local authorities, including advice on the marketing and evaluation procedures required for the New Supply Shared Equity Scheme.
As a firm, Thorntons is committed to supporting our local communities, with a community focus including fundraising, local youth initiatives and pro bono charity work, and we understand the impact of our social housing clients on their communities. We recognise that putting people and communities at the heart of their services is paramount to our Registered Social Landlord clients, and our experienced dedicated team are on hand through our network of local offices across Scotland to support them in their key work.
We are on hand to help clients with ongoing property management with lease and agreement support to reduce delays, inform tenants and minimise potential problems.
At Thorntons, we understand that every registered social landlord has their own specific requirements and we work to support them in the way they want. For instance, we provide a lease management legal service to one of our clients that has been developed over many years to fit their requirements, which include providing clarity for tenants, particularly on costs, and minimising the time to complete new leases. We have also developed a number of pro forma documents to facilitate the property management for them, including heads of terms for a new lease, transfer or renewal, and deposit and rent review agreements.
Our specialist lawyers can advise clients on a range of leasing issues, including leasing obligations and claims. For example, we advised a housing association client on their obligations in relation to the termination of a lead tenancy agreement, granted 20 years previously. The landlord had served a dilapidations notice requiring substantial works to be undertaken or compensation paid in lieu. We achieved a successful outcome for the client, with a settlement of around 20% of the original claim and our client being released from their obligations under the agreement.
As social housing landlords, housing associations have landlord responsibilities under the law and may be faced with disputes across a range of issues, such as non-payment of rent, anti-social behaviour from tenants, and property defects and housing management claims.
Our team can help you with proactive dispute resolution and litigation support as needed. We encourage early intervention and can advise on options such as mediation and arbitration, seeing going to court as the last option. However, if court action is necessary, we will strongly represent your interests and work to achieve the best outcome for you.
We appreciate that housing associations want issues such as anti-social behaviour and non-payment dealt with quickly in order for ongoing income generation and housing management. We work with clients to find the best route for their circumstances. For instance, in a recent case we provided advice and representation over unauthorised sub-let and anti-social behaviour, where the quickest resolution was to raise an action against the occupier. By ensuring timescales were maintained and enforcement carried out straightaway, it minimised expense to our client and allowed them to quickly generate income again from the property.
Social housing is a heavily regulated sector, and we have supported clients through many significant changes, including transfers of engagements, the assumption of other charities, adopting new Rules and Standing Orders, and the appointment of new Chairs and Chief Executives.
Our knowledge of the current governance framework and of good practice comes from our close relationships with our clients, team members’ experience as housing association board members, and our involvement with the Scottish Federation of Housing Associations and its working groups.
Such insight enables us to help clients in a range of governance and compliance issues. For example, recent work has included assisting a major housing group to restructure, which involved transfers of assets and engagements, and ensuring regulatory compliance in order for the transactions to complete within the tight deadlines.
Compliance and governance awareness plays a part in many issues faced by our clients, from data protection and employment problems to potential claims. For instance, in a recent case a client was dealing with high-level, complex complaints, which created a risk of reputational damage. Our advice covered both the employment implications of the complaints and the governance, regulatory and reputational issues involved, requiring close liaison with the Scottish Housing Regulator. Our input delivered a positive outcome for the client with none of the claims upheld.
We have extensive experience of social housing finance in Scotland, including borrowing, complex bond issues, credit refinancing, securitisation and restructuring, for housing associations of all sizes - those with fewer than 100 homes to those with thousands. Chris Allan and Ewan Miller of our Social Housing team have over 50 years’ experience between them in acting for borrowers in large real estate lending, with recent £70 million and £80 million deals.
With one of the largest teams in Scotland, we have the capacity and expertise to provide the level of support wanted, deal with urgent financial issues if needed and ensure work is done at the appropriate and cost-effective level.
Our work is wide-ranging, for instance we recently provided comprehensive support to a housing association group as they carried out a financial restructuring exercise involving the transfer of the commercial activities to a newly-incorporated company limited by shares, and the transfer into the group of the entire undertaking of a residential landlord with charitable status but which was not a registered social landlord. Our input resulted in the successful integration into the group of a large portfolio of properties, as well as restructuring so that the group’s commercial activities are carried out in a non-charitable subsidiary in a way which avoids certain potential tax issues, such as with Land and Buildings Transaction Tax.
Our team is on hand to help with all legal aspects of site acquisition and construction, including due diligence, warranties, leases, contract terms, agreements and appointments. We can also advise on partner agreements and schemes such as Help to Buy and Affordable Housing Supply Programme.
At Thorntons, we have extensive experience in this area in both the public and private sectors, with an Accredited Specialist in Construction Law on our team. This enables us to help housing associations successfully develop sites, avoid potential pitfalls and also deal effectively with any project disputes.
Recent work, for example, has included acting for a social housing developer in the acquisition and subsequent sale of a brownfield development site for social housing. This included advising on boundary issues, contamination and environmental issues, and construction and development documentation, as well as dealing with existing occupational leases.
We help our social housing clients to answer the pressing need for affordable housing in key areas, acting for housing association clients in the purchase of land for development in accordance with the Scottish Government’s Affordable Housing Supply Programme. And, as clients explore new ways to develop affordable housing, we are on hand to help, for example with a client who is using off-site modular construction for development of the site of a reclaimed dock. The original development could not proceed, so we worked with them to draft a new development agreement and deal with all the associated contracts, such as the building contract, collateral warranties and escrow agreement.
Dealing with property transfers and acquisitions, registered social landlords need corporate legal support with insight into the demands and timescales they are working under. At Thorntons, our Social Housing team brings together a full range of corporate legal services, working together to achieve the right result for our clients.
For instance we recently acted for the boards of two housing associations as assets were transferred to them as part of a housing group restructure. This involved due diligence, examination of key transfer contracts, identifying the transfer consents and approvals required, preparation of transfer documentation, title checks of all transferring properties, liaison with the housing group’s lenders over transfer consents and conditions, and carrying out the conveyancing required. The transactions were successfully completed and delivered to the required timescales, unlocking funding for multi-million-pound housing improvements.
Data protection legislation including GDPR is an increasingly important issue for housing associations, with potential issues over the handling of data, data security, transparency and how data subject access requests are handled.
At Thorntons, our Social Housing team includes data protection legal and compliance experts, who can help you with advice and practical support on complying with data protection legislation and best practice. For example, a housing association client recently came to us for help about a long-running and complex data protection matter involving Data Subject Access Requests (DSARs) and Freedom of Information (FOI) Requests, together with an associated Information Commissioner’s Office (ICO) investigation. With our support and advice on the application of exemptions including vexatious requests, and representation of the client in the investigation, the matter was able to be successfully resolved.
As data protection matters often occur against a backdrop of governance issues, our multi-disciplinary team ensure any wider issues are highlighted and addressed, avoiding potential future problems.
From setting up the right employment contracts and policies, resolving issues or dealing with employment claims, our specialist employment lawyers can help you ensure the right working environment for your employees and that any employment law issues are dealt with in the right way for your organisation. Our team includes four accredited specialists in employment law and is recognised for its significant depth of experience in the social housing sector.
Acquisitions or restructures, for instance, can have wide-reaching employment impacts. In a recent case, for example, we advised a housing association client going through a restructuring process, helping them embed a new operating model that affected staff across the organisation and substantially changed working practices, roles, methods and hours of working. This included advice on Transfer of Undertakings (Protection of Employment) Regulations (TUPE) transfers and union recognition, as well as both routine and complex absence and disciplinary matters.
Our experienced employment lawyers can respond quickly to help resolve issues, identifying and prioritising issues and advising on practical solutions in instances such as resolving complaints, employee claims or delivering to tight project timescales.
Social housing with care services or nursing homes can face specific regulatory and legal challenges. Our specialists in healthcare legal services on our team have a wealth of experience in the sector and can help you in areas such as property and business acquisitions and disposals, contracts, partnership issues, regulatory compliance, and leases with the NHS.
Our full range of legal expertise means we can deal with all the legal demands in complex social housing and care services situations. For instance, we helped our client, a housing group, with the successful assumption of an existing charity which operated a regulated care home that was no longer viable. The nature of the home’s constitution and charity status required careful consideration of how control could be passed to our client. The work included checking and correcting the property title, amending the constitution, holding general meetings, advising on an interim management agreement, advice on application to the Office of the Scottish Charity Regulator (OSCR) for wind-up consent, and employment issues regarding staff potentially transferring to our client.
Social housing clients can face a range of contract and procurement issues, including meeting procurement regulation standards and ensuring that they have the right contracts and agreements in place for what can be complicated arrangements over construction, repairs, and providing or buying services.
At Thorntons, our highly experienced team can help at every stage of the procurement process, from tender through to drafting contracts, calling on our legal experts from across the firm, such as in employment, corporate and construction law, to ensure key areas are clearly addressed and potential problems avoided. For example, we recently advised a housing association client on the procurement of a replacement reactive repairs contractor, making sure of the correct application of TUPE Regulations over the transfer of employees to the new contractor at the start of the contract and the potential transfer of those same employees to our client at the end of the contract.
With the different parties potentially involved in social housing development, including finance providers, builders and local authorities, and the deadlines involved, effective expert collaboration can be vital to deliver successful outcomes for housing association clients. At Thorntons, our team’s full-service experience can help clients bring together issues such as financing, agreeing contracts and resolving property titles all to tight deadlines. For instance, we acted for a charitable registered social landlord over their acquisition of land for affordable homes as part of a larger housing development on a greenfield site. The land purchase was time critical due to the need to draw down Scottish Government grant funding by a specified date. The purchase was conditional on planning permission being granted and the parties entering into a building contract. Our dealings with the builder and their solicitors on previous projects allowed us to establish a collaborative approach from the start, helping deliver the project within the challenging timescale.
Our specialist lawyers can provide a range of training tailored to individual clients’ concerns and needs – from updating staff on landlord obligations and regulatory changes to building general organisational awareness of key HR and employment law issues. Our recent bespoke training has included:
- Running training seminars for housing association repairing officers and housing officers on social landlords’ responsibilities in relation to condensation and rising damp, together with what tenants are required to do to adequately heat their homes – a key issue given the cost of living crisis. This helped our client in their work to proactively and practically support their tenants but also to safeguard against a rise in claims for mould or rising damp.
- Developing a suite of training in a variety of formats for a housing association’s operational managers to enhance skills in dealing with day-to day HR issues with employment law implications, without automatically requiring escalation to the HR team. This helped both managers and the HR team deal with issues more quickly and effectively.
- Delivering training on a variety of topics specifically identified to address gaps within a client’s HR team due to changes in personnel. Topics included the application of IR35, changing terms and conditions, agency worker regulations, and TUPE.
Contact our team on 03330 430350 to find out more about our bespoke training options.
- Advising Hillcrest Homes on the land purchase and building contracts for 167 new affordable homes.
- Advising Kingdom Housing Association on the employment aspects of its strategic acquisition of and integration with Fairfield Housing Association.
- Advising the boards of both Glasgow Housing Association and Loretto Housing Association on the transfer of Cube Housing Association assets as part of a restructure of the Wheatley Housing Group.
Perth, Edinburgh, Dundee
Director, Data Protection Services