Housing and Planning Bill (HL Bill 117)

(4) The Secretary of State must obtain HMRC’s consent before making—

(a) arrangements under subsection (2)(d), or

(b) regulations under subsection (3).

(5) Information disclosed under this section to the Secretary of State or to a body
5mentioned in subsection (2)(c) or (d) may be passed on to a registered provider
for which it is intended.

(6) Information disclosed under this section may not otherwise be further
disclosed without authorisation from HMRC.

(7) Where a person contravenes subsection (6) by disclosing any revenue and
10customs information relating to a person whose identity—

(a) is specified in the disclosure, or

(b) can be deduced from it,

section 19 of the Commissioners for Revenue and Customs Act 2005 (wrongful
disclosure) applies in relation to that disclosure as it applies in relation to a
15disclosure of such information in contravention of section 20(9) of that Act.

(8) In this section—

• “HMRC” means the Commissioners for Her Majesty’s Revenue and
  Customs;

• “relevant”, in relation to a private registered provider’s policy about
  20levels of rent for high income social tenants in England, means a policy
  that—

  (a)

  has been published as required by section 88, and

  (b)

  complies with any requirements imposed under subsection (2)
  of that section;

• 25“revenue and customs information relating to a person” has the meaning
  given by section 19(2) of the Commissioners for Revenue and Customs
  Act 2005;

• “tenant” includes prospective tenant.

Interpretation

90 30Interpretation of Chapter

In this Chapter—

• “high income” has the meaning given by regulations under section 80;

• “local housing authority” has the meaning given by section 1 of the
  Housing Act 1985;

• 35“rent” includes payments under a licence to occupy;

• “rent regulations” has the meaning given by section 79;

• “social housing” has the same meaning as in Part 2 of the Housing and
  Regeneration Act 2008 (see sections 68 and 72 of that Act);

• “tenancy” includes a licence to occupy;

• 40“tenant” includes a person who has a licence to occupy.

CHAPTER 4 Reducing regulation of social housing etc

91 Reducing social housing regulation

Schedule 4 contains amendments to reduce the regulation of social housing.

92 5Reducing local authority influence over private registered providers

(1) The Secretary of State may by regulations make provision for the purpose of
limiting or removing the ability of local authorities to exert influence over
private registered providers through—

(a) appointing or removing officers of private registered providers;

(b) 10exercising or controlling voting rights.

(2) The regulations may in particular—

(a) limit the number of officers that a local authority may appoint;

(b) prohibit a local authority from appointing officers;

(c) confer power on a private registered provider to remove officers
15appointed by a local authority;

(d) prohibit a local authority from doing things that would result in it
obtaining voting rights in a private registered provider;

(e) require a local authority to take steps to reduce or get rid of any voting
rights that it has in a private registered provider.

(3) 20Regulations under this section may override or modify any contractual or
other rights (whenever created) or anything in a private registered provider’s
constitution.

(4) Regulations under this section may—

(a) confer a power to amend the constitution of a private registered
25provider in consequence of provision made by the regulations;

(b) make provision about the procedure for exercising that power.

(5) In this section—

• “appointing”, in relation to an officer, includes nominating or otherwise
  influencing the selection of the officer;

• 30“constitution” includes rules;

• “local authority” has the meaning given by section 106 of the Housing
  Associations Act 1985;

• “officer”, in relation to a private registered provider, has the meaning
  given by section 270 of the Housing and Regeneration Act 2008;

• 35“private registered provider” means a private registered provider of
  social housing.

93 Recovery of social housing assistance: successors in title

(1) Section 33 of the Housing and Regeneration Act 2008 (recovery of social
housing assistance: interest and successors in title) is amended as follows.

(2) 40In subsection (6)(b), after “another person” insert “(“the successor”)”.

(3) After subsection (6) insert—

“(6A) But subsection (7) does not apply if—

(a) the successor is a person other than a registered provider of
social housing, and

(b) 5at any time since the social housing assistance was given—

(i) a person has enforced a security over the social housing,
or

(ii) the social housing has been disposed of by a body while
it is being wound up or is in administration (which, for
10this purpose, includes housing administration under
Chapter 5 of Part 4 of the Housing and Planning Act
2016).”””

(4) In subsection (7) for “that other person” substitute “the successor”.

CHAPTER 5 15Insolvency of registered providers of social housing

Housing administration

94 Housing administration order: providers of social housing in England

(1) In this Chapter “housing administration order” means an order which—

(a) is made by the court in relation to a private registered provider of social
20housing that is—

(i) a company,

(ii) a registered society within the meaning of the Co-operative and
Community Benefit Societies Act 2014, or

(iii) a charitable incorporated organisation within the meaning of
25Part 11 of the Charities Act 2011, and

(b) directs that, while the order is in force, the provider’s affairs, business
and property are to be managed by a person appointed by the court.

(2) The person appointed for the purposes of the housing administration order is
referred to in this Chapter as the “housing administrator”.

(3) 30In relation to a housing administration order applying to a registered provider
that is a foreign company, the reference in subsection (1)(b) to the provider’s
affairs, business and property is a reference to its UK affairs, business and
property.

95 Objective of housing administration

(1) 35A housing administrator has two objectives—

(a) Objective 1: normal administration (see section 96), and

(b) Objective 2: keeping social housing in the regulated sector (see section
97).

(2) Objective 1 takes priority over Objective 2 (but the housing administrator must,
40so far as possible, work towards both objectives).

(3) It follows that, in pursuing Objective 2, the housing administrator must not do
anything that would result in a worse distribution to creditors than would be
the case if the administrator did not need to pursue Objective 2.

(4) A reference in this Chapter to the objectives of a housing administration is to
5the objectives to be pursued by the housing administrator.

96 Objective 1: normal administration

(1) Objective 1 is to—

(a) rescue the registered provider as a going concern,

(b) achieve a better result for the registered provider’s creditors as a whole
10than would be likely if the registered provider were wound up
(without first being in housing administration), or

(c) realise property in order to make a distribution to one or more secured
or preferential creditors.

(2) The housing administrator must aim to achieve Objective 1(a) unless the
15housing administrator thinks—

(a) that it is not reasonably practicable to achieve it, or

(b) that Objective 1(b) would achieve a better result for the registered
provider’s creditors as a whole.

(3) The housing administrator may aim to achieve Objective 1(c) only if—

(a) 20the housing administrator thinks that it is not reasonably practicable to
achieve Objective 1(a) or (b), and

(b) the housing administrator does not unnecessarily harm the interests of
the registered provider’s creditors as a whole.

(4) In pursuing Objective 1(a), (b) or (c) the housing administrator must act in the
25interests of the registered provider’s creditors as a whole so far as consistent
with that Objective.

97 Objective 2: keeping social housing in the regulated sector

(1) Objective 2 is to ensure that the registered provider’s social housing remains in
the regulated housing sector.

(2) 30For this purpose, social housing remains in the regulated housing sector for so
long as it is owned by a private registered provider.

98 Applications for housing administration orders

(1) An application for a housing administration order may be made only—

(a) by the Secretary of State, or

(b) 35with the consent of the Secretary of State, by the Regulator of Social
Housing.

(2) The applicant for a housing administration order in relation to a registered
provider must give notice of the application to—

(a) every person who has appointed an administrative receiver of the
40provider,

(b) every person who is or may be entitled to appoint an administrative
receiver of the registered provider,

(c)

every person who is or may be entitled to make an appointment in
relation to the registered provider under paragraph 14 of Schedule B1
to the Insolvency Act 1986 (appointment of administrators by holders
of floating charges), and

(d) 5any other persons specified by housing administration rules.

(3) The notice must be given as soon as possible after the making of the
application.

(4) In this section “administrative receiver” means—

(a) an administrative receiver within the meaning given by section 251 of
10the Insolvency Act 1986 for the purposes of Parts 1 to 7 of that Act, or

(b)
in relation to a foreign company, a person whose functions are
equivalent to those of an administrative receiver and relate only to its
UK affairs, business and property.

99 Powers of court

(1) 15On hearing an application for a housing administration order, the court has the
following powers—

(a) it may make the order,

(b) it may dismiss the application,

(c) it may adjourn the hearing conditionally or unconditionally,

(d) 20it may make an interim order,

(e) it may treat the application as a winding-up petition and make any
order the court could make under section 125 of the Insolvency Act
1986 (power of court on hearing winding-up petition), and

(f) it may make any other order which it thinks appropriate.

(2) 25The court may make a housing administration order in relation to a registered
provider only if it is satisfied—

(a) that the registered provider is unable, or is likely to be unable, to pay its
debts, or

(b) that, on a petition by the Secretary of State under section 124A of the
30Insolvency Act 1986, it would be just and equitable (disregarding the
objectives of the housing administration) to wind up the registered
provider in the public interest.

(3) The court may not make a housing administration order on the ground set out
in subsection (2)(b) unless the Secretary of State has certified to the court that
35the case is one in which the Secretary of State considers (disregarding the
objectives of the housing administration) that it would be appropriate to
petition under section 124A of the Insolvency Act 1986.

(4) The court has no power to make a housing administration order in relation to
a registered provider which—

(a) 40is in administration under Schedule B1 to the Insolvency Act 1986, or

(b) has gone into liquidation (within the meaning of section 247(2) of the
Insolvency Act 1986).

(5) A housing administration order comes into force—

(a) at the time appointed by the court, or

(b) 45if no time is appointed by the court, when the order is made.

(6) An interim order under subsection (1)(d) may, in particular—

(a) restrict the exercise of a power of the registered provider or of its
relevant officers, or

(b) make provision conferring a discretion on a person qualified to act as
an insolvency practitioner in relation to the registered provider.

(7) 5In subsection (6)(a) “relevant officer”—

(a) in relation to a company, means a director,

(b) in relation to a registered society, means a member of the management
committee or other directing body of the society, and

(c) in relation to a charitable incorporated organisation, means a charity
10trustee (as defined by section 177 of the Charities Act 2011).

(8) In the case of a foreign company, subsection (6)(a) is to be read as a reference
to restricting the exercise of a power of the registered provider or of its
directors—

(a) within the United Kingdom, or

(b) 15in relation to the company’s UK affairs, business or property.

(9) For the purposes of this section a registered provider is unable to pay its debts
if—

(a) it is deemed to be unable to pay its debts under section 123 of the
Insolvency Act 1986, or

(b) 20it is an unregistered company which is deemed, as a result of any of
sections 222 to 224 of the Insolvency Act 1986, to be so unable for the
purposes of section 221 of that Act, or which would be so deemed if it
were an unregistered company for the purposes of those sections.

100 Housing administrators

(1) 25The housing administrator of a registered provider—

(a) is an officer of the court, and

(b) in carrying out functions in relation to the registered provider, is the
registered provider’s agent.

(2) The housing administrator of a registered provider must aim to achieve the
30objectives of the housing administration as quickly and as efficiently as is
reasonably practicable.

(3) A person is not to be the housing administrator of a registered provider unless
qualified to act as an insolvency practitioner in relation to the registered
provider.

(4) 35If the court appoints two or more persons as the housing administrator of a
registered provider, the appointment must set out—

(a) which (if any) of the functions of a housing administrator are to be
carried out only by the appointees acting jointly,

(b) the circumstances (if any) in which functions of a housing
40administrator are to be carried out by one of the appointees, or by
particular appointees, acting alone, and

(c) the circumstances (if any) in which things done in relation to one of the
appointees, or in relation to particular appointees, are to be treated as
done in relation to all of them.

101 Conduct of administration etc

(1) Schedule 5 contains provision applying the provisions of Schedule B1 to the
Insolvency Act 1986, and certain other legislation, to housing administration
orders in relation to companies.

(2) 5The Secretary of State may by regulations provide for any provision of
Schedule B1 to the Insolvency Act 1986 or any other insolvency legislation to
apply, with or without modifications, to cases where a housing administration
order is made in relation to a registered society or a charitable incorporated
organisation.

(3) 10The Secretary of State may by regulations modify any insolvency legislation as
it applies in relation to a registered society or a charitable incorporated
organisation if the Secretary State considers the modifications are appropriate
in connection with any provision made by or under this Chapter.

(4) In subsection (3) “insolvency legislation” means—

(a) 15the Insolvency Act 1986, or

(b) any other legislation (whenever passed or made) that relates to
insolvency or makes provision by reference to anything that is or may
be done under the Insolvency Act 1986.

(5) The power to make rules under section 411 of the Insolvency Act 1986 is to
20apply for the purpose of giving effect to this Chapter as it applies for the
purpose of giving effect to Parts 1 to 7 of that Act (and, accordingly, as if
references in that section to those Parts included references to this Chapter).

(6) Section 413(2) of the Insolvency Act 1986 (duty to consult Insolvency Rules
Committee about rules) does not apply to rules made under section 411 of that
25Act as a result of this section.

102 Housing administrator may sell land free from planning obligations

(1) If the housing administrator of a registered provider disposes of land that is the
subject of a planning obligation that contains relevant terms, the relevant terms
are not binding on the person to whom the land is disposed of or any successor
30in title.

(2) In this section—

• “disposes of”, in relation to land, means sells a freehold or leasehold
  interest in the land or grants a lease of the land;

• “planning obligation” means a planning obligation under section 106 of
  35the Town and Country Planning Act 1990 (whether entered into before
  or after this section comes into force);

• “relevant terms” in relation to a planning obligation, means any
  restrictions or requirements imposed by the planning obligation that
  are expressed not to apply in the event that the land is disposed of by a
  40mortgagee.

Restrictions on other insolvency procedures

103 Winding-up orders

(1) This section applies if a person other than the Secretary of State petitions for the
winding-up of a registered provider that is—

(a) a company,

(b) a registered society within the meaning of the Co-operative and
Community Benefit Societies Act 2014, or

(c) a charitable incorporated organisation within the meaning of Part 11 of
5the Charities Act 2011.

(2) The court may not exercise its powers on a winding-up petition unless—

(a) notice of the petition has been given to the Regulator of Social Housing
and a period of at least 28 days has elapsed since that notice was given,
or

(b) 10the Regulator of Social Housing has waived the notice requirement in
paragraph (a).

(3)
If an application for a housing administration order in relation to the registered
provider is made to the court in accordance with section 98 before a winding-
up order is made on the petition, the court may exercise its powers under
15section 99 (instead of exercising its powers on the petition).

(4) The Regulator of Social Housing must give the Secretary of State a copy of any
notice given under subsection (2)(a).

(5) The Regulator of Social Housing may waive the notice requirement under
subsection (2)(a) only with the consent of the Secretary of State.

(6) 20References in this section to the court’s powers on a winding-up petition are
to—

(a) its powers under section 125 of the Insolvency Act 1986 (other than its
power of adjournment), and

(b) its powers under section 135 of the Insolvency Act 1986.

104 25Voluntary winding up

(1) This section applies to a private registered provider that is—

(a) a company,

(b) a registered society within the meaning of the Co-operative and
Community Benefit Societies Act 2014, or

(c) 30a charitable incorporated organisation within the meaning of Part 11 of
the Charities Act 2011.

(2) The registered provider has no power to pass a resolution for voluntary
winding up without the permission of the court.

(3) Permission may be granted by the court only on an application made by the
35registered provider.

(4) The court may not grant permission unless—

(a) notice of the application has been given to the Regulator of Social
Housing and a period of at least 28 days has elapsed since that notice
was given, or

(b) 40the Regulator of Social Housing has waived the notice requirement in
paragraph (a).

(5) If an application for a housing administration order in relation to the registered
provider is made to the court in accordance with section 98 after an application
for permission under this section has been made and before it is granted, the
45court may exercise its powers under section 99.

(6) The Regulator of Social Housing must give the Secretary of State a copy of any
notice given under subsection (4)(a).

(7) The Regulator of Social Housing may waive the notice requirement under
subsection (4)(a) only with the consent of the Secretary of State.

(8) 5In this section “a resolution for voluntary winding up” has the same meaning
as in the Insolvency Act 1986.

105 Making of ordinary administration orders

(1) This section applies if a person other than the Secretary of State makes an
ordinary administration application in relation to a private registered provider
10that is—

(a) a company, or

(b) a charitable incorporated organisation within the meaning of Part 11 of
the Charities Act 2011.

(2) The court must dismiss the application if—

(a) 15a housing administration order is in force in relation to the registered
provider, or

(b) a housing administration order has been made in relation to the
registered provider but is not yet in force.

(3) If subsection (2) does not apply, the court, on hearing the application, must not
20exercise its powers under paragraph 13 of Schedule B1 to the Insolvency Act
1986 (other than its power of adjournment) unless—

(a) either—

(i) notice of the application has been given to the Regulator of
Social Housing and a period of at least 28 days has elapsed since
25that notice was given, or

(ii) the Regulator of Social Housing has waived the notice
requirement in sub-paragraph (i), and

(b) there is no application for a housing administration order which is
outstanding.

(4) 30The Regulator of Social Housing must give the Secretary of State a copy of any
notice given under subsection (3)(a).

(5) Paragraph 44 of Schedule B1 to the Insolvency Act 1986 (interim moratorium)
does not prevent, or require the permission of the court for, the making of an
application for a housing administration order.

(6) 35On the making of a housing administration order in relation to a registered
provider, the court must dismiss any ordinary administration application
made in relation to the registered provider which is outstanding.

(7) The Regulator of Social Housing may waive the notice requirement under
subsection (3)(a)(i) only with the consent of the Secretary of State.

(8) 40In this section “ordinary administration application” means an application in
accordance with paragraph 12 of Schedule B1 to the Insolvency Act 1986.

106 Administrator appointments by creditors

(1) Subsections (2) to (4) make provision about appointments under paragraph 14
or 22 of Schedule B1 to the Insolvency Act 1986 (powers to appoint
administrators) in relation to a private registered provider that is—

(a) 5a company, or

(b) a charitable incorporated organisation within the meaning of Part 11 of
the Charities Act 2011.

(2) If in any case—

(a) a housing administration order is in force in relation to the registered
10provider,

(b) a housing administration order has been made in relation to the
registered provider but is not yet in force, or

(c) an application for a housing administration order in relation to the
registered provider is outstanding,

15a person may not take any step to make an appointment.

(3) In any other case, an appointment takes effect only if each of the following
conditions are met.

(4) The conditions are—

(a) either—

(i) 20that notice of the appointment has been given to the Regulator
of Social Housing, accompanied by a copy of every document in
relation to the appointment that is filed or lodged with the court
in accordance with paragraph 18 or 29 of Schedule B1 to the
Insolvency Act 1986 and that a period of 28 days has elapsed
25since that notice was given, or

(ii) that the Regulator of Social Housing has waived the notice
requirement in sub-paragraph (i),

(b) that there is no outstanding application to the court for a housing
administration order in relation to the registered provider, and

(c) 30that the making of an application for a housing administration order in
relation to the registered provider has not resulted in the making of a
housing administration order which is in force or is still to come into
force.

(5) The Regulator of Social Housing must give the Secretary of State a copy of any
35notice given under subsection (4)(a) (and a copy of the accompanying
documents).

(6) The Regulator of Social Housing may waive the notice requirement under
subsection (4)(a)(i) only with the consent of the Secretary of State.

(7) Paragraph 44 of Schedule B1 to the Insolvency Act 1986 (interim moratorium)
40does not prevent, or require the permission of the court for, the making of an
application for a housing administration order at any time before the
appointment takes effect.

107 Enforcement of security

(1) This section applies in relation to a private registered provider that is—

(a) 45a company,