|
| |
|
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— |
| |
| |
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 |
| |
| 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.” |
| |
| |
| |
Estate Agents’ Redress Schemes |
| |
1 | The Estate Agents Act 1979 (c. 38) is amended as follows. |
| 25 |
2 | After section 23 insert— |
| |
| |
| |
(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 |
| |
| 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). |
| |
|
| |
|
| |
|
(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 |
| |
| 15 |
(7) | Nothing in this section prevents an approved redress scheme from |
| |
| |
(a) | for membership to be open to persons who are not subject to |
| |
| |
(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 |
| |
(b) | a redress scheme is “approved” if— |
| |
(i) | it is for the time being approved by the OFT under |
| |
| |
(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 |
| |
| 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). |
| |
|
| |
|
| |
|
(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. |
| |
| |
“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 |
| |
(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 |
| |
| |
(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 |
|
| |
|
| |
|
annulment in pursuance of a resolution of either House of |
| |
| |
3 | After Schedule 2 insert— |
| |
| |
| |
| 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 |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
(b) | persons exercising functions under other consumer |
| |
| 10 |
(c) | the OFT or any other person exercising regulatory |
| |
functions in relation to the activities of persons engaging in |
| |
| |
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 |
| |
| |
(a) | be made in such manner as the OFT may determine; and |
| |
(b) | be accompanied by such information as the OFT may |
| 20 |
| |
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 |
| |
| |
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 |
| |
|
| |
|
| |
|
(c) | that representations about the proposed withdrawal may |
| |
be made within such period of not less than 30 days as is |
| |
| |
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. |
| |
| |
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. |
| |
| |
| 25 |
“redress scheme” has the meaning given in section 23A(8)(a); |
| |
“approved redress scheme” has the meaning given in section |
| |
| |
“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 |
| |
| |
“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).” |
| |
|
| |
|
| |
|
4 | After Schedule 3 (as inserted by paragraph 3) insert— |
| |
| |
| |
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 |
| |
(a) | state the officer’s belief that that person has committed a |
| |
breach of the duty imposed by an order under section |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
|
| |
|