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Consumers, Estate Agents and Redress Bill [HL]


Consumers, Estate Agents and Redress Bill [HL]
Schedule 6 — Estate Agents’ Redress Schemes

68

 

4          

After Schedule 3 (as inserted by paragraph (3)) insert—

“Schedule 4

Section 23B(3)

 

Penalty notices under section 23B(1)

1          

A penalty charge notice given to a person under section 23B(1) by

a duly authorised officer of an enforcement authority other than

5

the OFT must—

(a)   

state the officer’s belief that that person has committed a

breach of the duty imposed by an order under section

23A(1);

(b)   

give such other particulars of the circumstances as may be

10

necessary to give reasonable notice of the breach of duty;

(c)   

require that person, within a period specified in the

notice—

(i)   

to pay a penalty charge specified in the notice; or

(ii)   

to give notice to the enforcement authority that he

15

wishes to review the notice;

(d)   

state the effect of paragraph 8;

(e)   

specify the person to whom and the address at which the

penalty charge may be paid and the method or methods by

which payment may be made; and

20

(f)   

specify the person to whom and the address at which a

notice requesting a review may be sent (and to which any

representations relating to the review may be addressed).

2          

The penalty charge specified in the notice shall be of such amount

(not exceeding £1,000) as may be prescribed for the time being by

25

regulations made by the Secretary of State.

3     (1)  

The period specified under paragraph 1(c) must not be less than 28

days beginning with the day after that on which the penalty

charge notice was given.

      (2)  

The enforcement authority may extend the period for complying

30

with the requirement mentioned in paragraph 1(c) in any

particular case if they consider it appropriate to do so.

4          

The enforcement authority may, if they consider that the penalty

charge notice ought not to have been given, give the recipient a

notice withdrawing the penalty charge notice.

35

5     (1)  

If, within the period specified under paragraph 1(c) (or that period

as extended under paragraph 3(2)), the recipient of the penalty

charge notice gives notice to the enforcement authority requesting

a review, the authority shall—

(a)   

consider any representations made by the recipient and all

40

other circumstances of the case;

(b)   

decide whether to confirm or withdraw the notice; and

(c)   

give notice of their decision to the recipient.

      (2)  

A notice under sub-paragraph (1)(c) confirming the penalty

charge notice must also state the effect of paragraphs 6(1) to (3)

45

and 8(1) and (3).

 

 

Consumers, Estate Agents and Redress Bill [HL]
Schedule 6 — Estate Agents’ Redress Schemes

69

 

      (3)  

If the authority are not satisfied—

(a)   

that the recipient committed the breach of duty specified in

the notice;

(b)   

that the notice was given within the time allowed by

section 23B(2) and complies with the other requirements

5

imposed by or under this Schedule; and

(c)   

that in the circumstances of the case it was appropriate for

a penalty charge notice to be given to the recipient,

           

they shall withdraw the penalty charge notice.

6     (1)  

If after a review the penalty charge notice is confirmed by the

10

enforcement authority, the recipient may, within the period of 28

days beginning with the day after that on which the notice under

paragraph 5(1)(c) is given, appeal to a county court or, in Scotland,

to the sheriff against the penalty charge notice.

      (2)  

The county court or the sheriff may extend the period for

15

appealing against the notice.

      (3)  

Such an appeal must be on one (or more) of the following

grounds—

(a)   

that the recipient did not commit the breach of duty

specified in the penalty charge notice;

20

(b)   

that the notice was not given within the time allowed by

section 23B(2) or does not comply with any other

requirement imposed by or under this Schedule; or

(c)   

that in the circumstances of the case it was inappropriate

for the notice to be given to the recipient.

25

      (4)  

An appeal against a penalty charge notice shall be by way of a

rehearing; and the county court or sheriff shall either uphold the

notice or quash it.

7          

If the penalty charge notice is withdrawn or quashed, the

authority shall repay any amount previously paid as a penalty

30

charge in pursuance of the notice.

8     (1)  

The amount of the penalty charge is recoverable from the recipient

of the penalty charge notice as a debt owed to the authority

unless—

(a)   

the notice has been withdrawn or quashed; or

35

(b)   

the charge has been paid.

      (2)  

Proceedings for the recovery of the penalty charge may not be

commenced before the end of the period mentioned in paragraph

5(1).

      (3)  

And if within that period the recipient of the penalty charge notice

40

gives notice to the authority that he wishes the authority to review

the penalty charge notice, such proceedings may not be

commenced—

(a)   

before the end of the period mentioned in paragraph 6(1);

and

45

(b)   

where the recipient appeals against the penalty charge

notice, before the end of the period of 28 days beginning

 

 

Consumers, Estate Agents and Redress Bill [HL]
Schedule 7 — Minor and consequential amendments

70

 

with the day on which the appeal is withdrawn or

determined.

9          

In proceedings for the recovery of the penalty charge, a certificate

which—

(a)   

purports to be signed by or on behalf of the person having

5

responsibility for the financial affairs of the enforcement

authority; and

(b)   

states that payment of the penalty charge was or was not

received by a date specified in the certificate;

           

is evidence of the facts stated.

10

10         

Section 29 (service of notices etc.) applies in relation to—

(a)   

any penalty charge notice which is to be given under

section 23B(1) by a duly authorised officer of an

enforcement authority other than the OFT; and

(b)   

any notice which is to be given under paragraph 5(1)(c) of

15

this Schedule by such an enforcement authority;

           

as it applies in relation to any notice which under this Act is to be

given to any person by the OFT.

11         

The Secretary of State may by regulations make provision

supplementary or incidental to the provisions of this Schedule,

20

including in particular provision prescribing—

(a)   

the form of penalty charge notices or of any other notice

mentioned in this Schedule;

(b)   

circumstances in which penalty charge notices may not be

given;

25

(c)   

the method or methods by which penalty charges may be

paid.

12         

Any power to make regulations under this Schedule shall be

exercisable by statutory instrument which shall be subject to

annulment in pursuance of a resolution of either House of

30

Parliament.”

Schedule 7

Section 63

 

Minor and consequential amendments

Estate Agents Act 1979 (c. 38)

1          

In section 3 of the Estate Agents Act 1979 (prohibition orders), in subsection

35

(3) for “paragraphs (c) and (d)” substitute “paragraphs (ba) to (d)”.

2          

In section 6 of that Act (revocation and variation of orders)—

(a)   

in subsection (4) in paragraph (b), for the words from “again fail to

comply” to the end of the paragraph substitute “engage in further

conduct as mentioned in subsection (1A)(b) or (1B)(b) of that section

40

or engage again in the practice specified in the order, as the case may

be.”; and

(b)   

omit subsection (7).

 

 

Consumers, Estate Agents and Redress Bill [HL]
Schedule 7 — Minor and consequential amendments

71

 

3          

In section 30(2) of that Act (orders and regulations to which duty to consult

applies), after “19” insert “, 21A”.

Gas Act 1986 (c. 44)

4          

The Gas Act 1986 is amended as follows.

5          

In section 4AB (guidance on social and environmental matters), for

5

subsection (3)(b) substitute—

“(b)   

the Council;”.

6          

In section 28 (orders for securing compliance with certain provisions), in

subsection (6) for first “and” substitute “or”.

Electricity Act 1989 (c. 29)

10

7          

The Electricity Act 1989 is amended as follows.

8          

In section 3B (guidance on social and environmental matters), for subsection

(3)(b) substitute—

“(b)   

the Council;”.

9          

In section 25 (orders for securing compliance), in subsection (6) for first

15

“and” substitute “or”.

Water Industry Act 1991 (c. 56)

10         

In Schedule 15 to the Water Industry Act 1991 (disclosure of information)—

(a)   

in Part 1 (persons in respect of whose functions disclosure may be

made), at the end insert—

20

“The National Consumer Council.”, and

(b)   

in Part 2 (enactments etc in respect of which disclosure may be

made), after the entry for the Railways Act 2005 insert—

“The Consumers, Estate Agents and Redress Act 2007.”

Taxation of Chargeable Gains Act 1992 (c. 12)

25

11         

In section 35(3)(d) of the Taxation of Chargeable Gains Act 1992 (no gain no

loss disposals), after sub-paragraph (xvi) insert—

“(xvii)   

paragraph 9 of Schedule 4 to the Consumers, Estate

Agents and Redress Act 2007.”

Postal Services Act 2000 (c. 26)

30

12         

The Postal Services Act 2000 is amended as follows.

13         

In section 44 (review and information), in subsection (5) for “section 58(1)”

substitute “section 24(1) of the Consumers, Estate Agents and Redress Act

2007”.

14         

In section 61 (forward work programme)—

35

(a)   

in subsection (1) omit—

(i)   

“and the Council”, and

(ii)   

“each” (in the second place),

(b)   

in subsection (2)(b) omit “or the Council”,

 

 

Consumers, Estate Agents and Redress Bill [HL]
Schedule 7 — Minor and consequential amendments

72

 

(c)   

in subsection (3) omit “or the Council”, and

(d)   

in subsection (5)—

(i)   

in paragraph (a) omit “or (as the case may be) the

Commission”, and

(ii)   

in paragraph (b) omit “or (as the case may be) the Council”.

5

15         

In section 126 (index of defined expressions), in the entry for “The Council”,

in the second column for “Section 2(1)” substitute “Section 125(1)”.

16    (1)  

Schedule 7 (disclosure of information) is amended as follows.

      (2)  

In paragraph 1, after sub-paragraph (1)(b) insert “, and

(c)   

it is not information within section 29(3) of the Consumers,

10

Estate Agents and Redress Act 2007 (application of

disclosure regime in Part 9 of the Enterprise Act 2002 to

information obtained by the Council).”

      (3)  

In paragraph 3—

(a)   

for sub-paragraph (2)(u) substitute—

15

“(u)   

the National Consumer Council.”, and

(b)   

at the end of sub-paragraph (3) of that paragraph insert—

“(rr)   

the Consumers, Estate Agents and Redress Act

2007.”

      (4)  

In paragraph 5(1)—

20

(a)   

after paragraph (b) insert “or”, and

(b)   

omit paragraph (d) and the “or” immediately preceding it.

17         

In Schedule 8 (amendments of enactments), in paragraph 10 for “that

Schedule to that Act” substitute “Schedule 2 to the Parliamentary

Commissioner Act 1967”.

25

Utilities Act 2000 (c. 27)

18         

The Utilities Act 2000 is amended as follows.

19         

In section 4 (forward work programmes)—

(a)   

in subsection (1) omit—

(i)   

“and the Council”, and

30

(ii)   

“each” (in the second place),

(b)   

in subsection (3) omit “or the Council”,

(c)   

in subsection (4) omit “or the Council”,

(d)   

in subsection (5) omit “or the Council”, and

(e)   

omit subsection (7).

35

20         

In section 105 (general restrictions on disclosure of information)—

(a)   

in subsection (5) omit “and” immediately preceding paragraph (l)

and after that paragraph insert “, and

(m)   

the National Consumer Council.”,

(b)   

in subsection (6), at the end insert—

40

“(v)   

the Consumers, Estate Agents and Redress Act

2007.”,

(c)   

in subsection (8) omit—

(i)   

in paragraph (a) “33DA or”, and “42AA or”, and

 

 

Consumers, Estate Agents and Redress Bill [HL]
Schedule 8 — Repeals

73

 

(ii)   

in paragraph (c) “, the Council”, and

(d)   

after subsection (11) insert—

“(11A)   

Nothing in this section applies to information within section

29(3) of the Consumers, Estate Agents and Redress Act 2007

(application of disclosure regime in Part 9 of the Enterprise

5

Act 2002 to information obtained by the Council).”

Warm Homes and Energy Conservation Act 2000 (c. 31)

21         

In section 2 (strategy relating to fuel poverty) in subsection (4)(c) for “Gas

and Electricity Consumer Council” substitute “National Consumer

Council”.

10

Criminal Justice and Police Act 2001 (c. 16)

22         

In the Criminal Justice and Police Act 2001

(a)   

in section 66 (general interpretation of Part 2), in subsection (4)(e) for

“section 11(1) of the Estate Agents Act 1979” substitute “section 11(1)

to (1C) of the Estate Agents Act 1979”, and

15

(b)   

in Part 1 of Schedule 1 (powers of seizure to which section 50

applies), in paragraph 24 for “section 11(1)(c) of the Estate Agents

Act 1979” substitute “section 11(1B) of the Estate Agents Act 1979”.

Housing Act 2004 (c. 34)

23    (1)  

The Housing Act 2004 is amended as follows.

20

      (2)  

In section 166 (enforcement authorities), in subsection (2) for the words from

“to enforce” to the end of the subsection substitute “to enforce the duties

under sections 155 to 159 and 167(4) in their area.”

      (3)  

In section 168 (penalty charge notices), in subsection (1) for the words from

“a breach of” to the end of the subsection substitute “a breach of any duty

25

under sections 155 to 159 and 167(4), give a penalty charge notice to that

person.”

Schedule 8

Section 64

 

Repeals

 

Short title and chapter

Extent of repeal

 

30

 

Public Records Act 1958 (c. 51)

In Schedule 1, in the Table at the end of

 
  

paragraph 3, the entries relating to the

 
  

Consumer Council for Postal Services and the

 
  

Gas and Electricity Consumer Council.

 
 

Parliamentary Commissioner

In Schedule 2 the entries relating to the

 

35

 

Act 1967 (c. 13)

Consumer Council for Postal Services, the

 
  

Gas and Electricity Consumer Council and

 
  

the National Consumer Council.

 
 

 

Consumers, Estate Agents and Redress Bill [HL]
Schedule 8 — Repeals

74

 
 

Short title and chapter

Extent of repeal

 
 

House of Commons

In Schedule 1—

 
 

Disqualification Act 1975

(a)   

in Part 2 the entries relating to the

 
 

(c. 24)

Consumer Council for Postal Services

 
  

and the Gas and Electricity Consumer

 

5

  

Council, and

 
  

(b)   

in Part 3 the entries relating to the

 
  

Chairman and Deputy Chairman of the

 
  

National Consumer Council.

 
 

Race Relations Act 1976 (c. 74)

In Schedule 1A, in Part 2, the entries for the

 

10

  

Consumer Council for Postal Services

 
  

(“Postwatch”), the Gas and Electricity

 
  

Consumer Council (Energywatch) and the

 
  

National Consumer Council.

 
 

Estate Agents Act 1979 (c. 38)

Section 5(4).

 

15

  

Section 6(7).

 
  

Section 9(4)(a).

 
  

Section 27(1)(b).

 
 

Gas Act 1986 (c. 44)

Sections 32 and 33.

 
 

Electricity Act 1989 (c. 29)

Sections 46 and 46A.

 

20

 

Postal Services Act 2000 (c. 26)

Section 2.

 
  

In section 39 “or of the Secretary of State in

 
  

relation to the establishment of the Council”.

 
  

Sections 51 to 59.

 
  

In section 61—

 

25

  

(a)   

in subsection (1) “and the Council” and

 
  

“each” (in the second place),

 
  

(b)   

in subsection (2)(b) “or the Council”,

 
  

(c)   

in subsection (3) “or the Council”,

 
  

(d)   

in subsection (5)(a) “or (as the case may

 

30

  

be) the Commission”, and

 
  

(e)   

in subsection (5)(b) “or (as the case may

 
  

be) the Council”.

 
  

Schedule 2.

 
  

In Schedule 7, paragraph 5(1)(d) and the “or”

 

35

  

immediately preceding it.

 
  

In Schedule 8, paragraphs 9 and 14(2).

 
 

Utilities Act 2000 (c. 27)

Section 2.

 
  

Section 3(6).

 
  

In section 4—

 

40

  

(a)   

in subsection (1) “and the Council” and

 
  

“each” (in the second place),

 
  

(b)   

in subsection (3) “or the Council”,

 
  

(c)   

in subsection (4) “or the Council”,

 
  

(d)   

in subsection (5) “or the Council”, and

 

45

  

(e)   

subsection (7).

 
  

In section 8—

 
  

(a)   

subsection (3)(b) and the “and”

 
  

immediately preceding it, and

 
  

(b)   

subsection (7).

 

50

 

 

 
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