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Consumers, Estate Agents and Redress Bill [HL]


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

62

 

may direct with respect to the levels of compliance with the

standards which the licence holder has achieved.”

3     (1)  

The Postal Services Act 2000 (c. 26) is amended as follows.

      (2)  

In section 22 (final orders), in the definition of “relevant requirement” in

subsection (5) (as substituted by paragraph 3(2) of Schedule 2 and amended

5

by section 52), after “or” at the end of paragraph (a) insert—

“(aa)   

an obligation imposed under section 61A, or”.

      (3)  

After section 61 insert—

“Information

61A     

Information relating to complaints handling standards

10

(1)   

This section applies in relation to standards prescribed by the

Commission by regulations under section 43 of the Consumers,

Estate Agents and Redress Act 2007 (standards for complaints

handling) in relation to licence holders under Part 2 (or some of

them).

15

(2)   

The Commission must from time to time collect information with

respect to the levels of compliance with the standards which those

licence holders have achieved.

(3)   

At such times as the Commission may direct, each of those licence

holders must give the Commission such information as the

20

Commission may direct with respect to the levels of compliance with

the standards which the licence holder has achieved.”

Schedule 6

Section 53

 

Estate Agents’ Redress Schemes

1          

The Estate Agents Act 1979 (c. 38) is amended as follows.

25

2          

After section 23 insert—

“Redress schemes

23A     

Redress schemes

(1)   

The Secretary of State may by order require persons who engage in

estate agency work in relation to residential property (“relevant

30

estate agency work”) to be members of an approved redress scheme

for dealing with complaints in connection with that work.

(2)   

An order may provide for the duty to apply—

(a)   

only to specified descriptions of persons who engage in estate

agency work; and

35

(b)   

in relation to any relevant estate agency work carried out by

a person to whom the duty applies or only in relation to

specified descriptions of work (which may be framed by

reference to descriptions of residential property).

 

 

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

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(3)   

An order may also provide for the duty not to apply in relation to

complaints of any specified description (which may be framed by

reference to a description of person making a complaint).

(4)   

In subsections (1) and (2)(a), the reference to persons who engage in

estate agency work does not include a reference to persons who

5

engage in that work in the course of their employment.

(5)   

The power to make an order shall be exercisable by statutory

instrument which shall be subject to annulment in pursuance of a

resolution of either House of Parliament.

(6)   

Before making an order the Secretary of State must be satisfied that

10

all persons who are to be subject to the duty will be eligible to join a

suitable approved redress scheme before the duty applies to them.

   

For this purpose the Secretary of State may disregard persons who

cannot lawfully engage in the relevant estate agency work to which

the duty applies.

15

(7)   

Nothing in this section prevents an approved redress scheme from

providing—

(a)   

for membership to be open to persons who are not subject to

the duty;

(b)   

for the investigation and determination of any complaints in

20

relation to which the duty does not apply, where the

members concerned have voluntarily accepted the

jurisdiction of the scheme over those complaints;

(c)   

for the exclusion from investigation and determination under

the scheme of any complaint in such cases or circumstances

25

as may be specified in or determined under the scheme.

(8)   

For the purposes of this section—

(a)   

a “redress scheme” is a scheme which provides for

complaints against members of the scheme to be investigated

and determined by an independent person (“the

30

ombudsman”);

(b)   

a redress scheme is “approved” if—

(i)   

it is for the time being approved by the OFT under

Schedule 3; or

(ii)   

it is administered by or on behalf of the Secretary of

35

State and designated by him as an approved redress

scheme for the purposes of this section;

(c)   

a “complaint” is a complaint made by a person by virtue of

his being or having been a seller or buyer of residential

property;

40

(d)   

“seller”, in relation to residential property, means a person

who claims that he is or may become interested in disposing

of an interest in land in respect of that property (and includes

a person who disposes of such an interest);

(e)   

“buyer”, in relation to residential property, means a person

45

who claims that he is or may become interested in acquiring

an interest in land in respect of that property (and includes a

person who acquires such an interest).

 

 

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

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(9)   

The Secretary of State may not designate a scheme as an approved

redress scheme for the purposes of this section unless the Secretary

of State is satisfied that the scheme is one which could be approved

by the OFT in accordance with paragraphs 2 to 5 of Schedule 3.

(10)   

Schedule 3 (which makes further provision in connection with the

5

approval of redress schemes etc.) shall have effect.

(11)   

In this section—

“order” means an order under subsection (1);

“the duty” means the requirement under an order to be a

member of an approved redress scheme.

10

23B     

Enforcement

(1)   

If a duly authorised officer of an enforcement authority other than

the OFT believes that a person has engaged (or is engaging) in estate

agency work in relation to residential property in breach of the duty

imposed by an order under section 23A(1) he may give a penalty

15

charge notice to that person.

(2)   

A penalty charge notice may not be given after the end of the period

of six months beginning with the day (or in the case of a continuing

breach the last day) on which the breach of duty was committed.

(3)   

Schedule 4 (which makes further provision in connection with

20

penalty charge notices) shall have effect.

(4)   

An enforcement authority other than the OFT must notify the OFT if

it believes that a person has engaged (or is engaging) in estate agency

work in relation to residential property in breach of the duty

imposed by an order under section 23A(1).

25

23C     

Meaning of residential property

(1)   

For the purposes of sections 23A and 23B “residential property”—

(a)   

has the meaning given by subsection (2); but

(b)   

does not include land of a description specified in an order

made by the Secretary of State for the purposes of this section.

30

(2)   

“Residential property” means any land that consists of or includes a

building or part of a building—

(a)   

the whole or part of which is used as a dwelling or as more

than one dwelling; or

(b)   

that is (or is to be) offered for sale on the basis that the whole

35

or part of it is suitable for such use or is intended to be so

suitable by the time the seller disposes of his interest in it.

(3)   

In subsection (2), the reference to a building or part of a building (so

far as relating to paragraph (b) of that subsection) includes a

reference to a building or part that is being or is to be constructed.

40

(4)   

A description of land specified by order under subsection (1)(b) may

be framed by reference to the purpose or purposes for which the land

(or part of it) is or is intended to be used.

(5)   

The power to make an order under subsection (1)(b) shall be

exercisable by statutory instrument which shall be subject to

45

 

 

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

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annulment in pursuance of a resolution of either House of

Parliament.”

3          

After Schedule 2 insert—

“Schedule 3

Section 23A(10)

 

Redress Schemes

5

Approval of redress schemes

1          

A redress scheme may be approved for the purposes of section

23A by the OFT acting in accordance with paragraphs 2 to 8.

2     (1)  

A scheme may not be approved unless the OFT considers that—

(a)   

the provisions of the scheme; and

10

(b)   

the manner in which it will be operated (so far as can be

judged from facts known to the authority);

           

are satisfactory for the purposes of section 23A.

      (2)  

Without prejudice to the generality of sub-paragraph (1), a scheme

must not be approved unless the OFT considers that it makes

15

satisfactory provision about—

(a)   

the complaints which may be made under the scheme

(which may include complaints about non-compliance

with the provisions of a code of practice or other

document);

20

(b)   

the ombudsman’s duties and powers in relation to the

investigation and determination of complaints (which may

include power to decide not to investigate or determine a

particular complaint);

(c)   

the redress which the ombudsman may require members

25

to provide to complainants, which must include the types

of redress specified in sub-paragraph (3);

(d)   

the enforcement of any requirement to provide redress

imposed on a member in accordance with the scheme.

      (3)  

The types of redress mentioned in sub-paragraph (2)(c) are—

30

(a)   

providing an apology or explanation;

(b)   

paying compensation; and

(c)   

taking such other actions in the interests of the

complainant as the ombudsman may specify.

3     (1)  

In determining whether a scheme, or any provisions mentioned in

35

paragraph 2(2), are satisfactory the OFT must have regard to—

(a)   

the interests of members of the scheme and of sellers and

buyers of residential properties; and

(b)   

such principles as—

(i)   

in the opinion of the OFT constitute generally

40

accepted principles of best practice in relation to

consumer redress schemes, and

(ii)   

it is reasonable to regard as applicable to the

scheme.

 

 

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

66

 

      (2)  

In considering the interests mentioned in sub-paragraph (1)(a), the

OFT may have regard to the number of other redress schemes

which are (or are likely to become) approved redress schemes.

4          

The OFT must not approve a scheme unless it considers that the

scheme makes satisfactory provision about the provision of

5

information by the ombudsman or the scheme administrator to—

(a)   

persons exercising functions under other approved

schemes;

(b)   

persons exercising functions under other consumer

redress schemes; and

10

(c)   

the OFT or any other person exercising regulatory

functions in relation to the activities of persons engaging in

estate agency work.

5          

The OFT must not approve a scheme if it considers that the scheme

provides for membership to be revoked on any unfair grounds.

15

Applications for approval to the OFT

6          

An application for approval by the OFT of a redress scheme

must—

(a)   

be made in such manner as the OFT may determine; and

(b)   

be accompanied by such information as the OFT may

20

require.

7          

Where the OFT is proposing to refuse an application for approval

it must give the applicant a notice stating—

(a)   

that it is proposing to refuse the application;

(b)   

the grounds for the proposed refusal; and

25

(c)   

that representations about the proposed refusal may be

made within such period of not less than 30 days as is

specified in the notice.

8          

If the OFT decides to refuse an application for approval, it must

give the applicant a notice stating—

30

(a)   

the OFT’s decision to refuse the application; and

(b)   

the reasons for the decision.

Notification of changes to an approved scheme

9          

The scheme administrator of a redress scheme which is approved

by the OFT must notify the OFT of any change to the scheme

35

before the end of the period of 14 days beginning with the day on

which the change is made.

Withdrawal of approval by the OFT

10         

The OFT may withdraw approval of a redress scheme which is for

the time being approved by it.

40

11         

Before withdrawing approval of a scheme, the OFT must give the

scheme administrator a notice stating—

(a)   

that it proposes to withdraw its approval;

(b)   

the grounds for the proposed withdrawal of approval; and

 

 

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

67

 

(c)   

that representations about the proposed withdrawal may

be made within such period of not less than 30 days as is

specified in the notice.

12         

The OFT must give the scheme administrator a notice stating—

(a)   

its decision on a proposal to withdraw approval; and

5

(b)   

the reasons for its decision.

13         

If the OFT decides to withdraw approval of a scheme—

(a)   

the withdrawal has effect from such date as may be

specified in the notice under paragraph 12;

(b)   

the scheme administrator must give a copy of the notice

10

under paragraph 12 to every member of the scheme.

Revocation of designation by the Secretary of State

14         

If the Secretary of State decides to revoke his designation of a

scheme for the purposes of section 23A, he must give every

member of the scheme a notice stating—

15

(a)   

that he has decided to revoke the designation;

(b)   

the reasons for his decision; and

(c)   

the date from which the revocation has effect.

Defamation proceedings

15         

For the purposes of the law relating to defamation, proceedings

20

under an approved redress scheme in relation to the investigation

and determination of a complaint are to be treated in the same way

as proceedings before a court.

Interpretation

16         

In this Schedule—

25

“redress scheme” has the meaning given in section 23A(8)(a);

“approved redress scheme” has the meaning given in section

23A(8)(b);

“buyer”, in relation to residential property, has the meaning

given in section 23A(8)(e);

30

“complaint” has the meaning given in section 23A(8)(c);

“ombudsman” means the independent person mentioned in

section 23A(8)(a);

“residential property” has the meaning given in section 23C;

“scheme administrator”, in relation to a redress scheme,

35

means the person who administers the scheme;

“seller”, in relation to residential property, has the meaning

given by section 23A(8)(d).”

 

 

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).

 

 

 
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