Housing and Regeneration Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Housing and Regeneration Bill

Housing and Regeneration Bill
Part 2 — Regulation of Social Housing
Chapter 6 — Regulatory powers
72

185
Inquiry: evidence
(1)
The inquirer may by notice require a person to attend at a specified time and
place and—
(a)
give evidence;
(b)
produce specified documents.
5
(2)
The inquirer may take evidence on oath (and for that purpose administer
oaths).
(3)
The power under subsection (1) may be exercised only in relation to persons
and information of a kind in respect of which the regulator can impose a
requirement under section 104.
10
(4)
Sections 104(4), (5), (6) and (7) and 105 apply for the purposes of this section
(with any necessary modifications).
186
Extraordinary audit
(1)
Where an inquiry in respect of a registered provider is being held, or has been
held, under section 183, the regulator may require the registered provider to
15
allow its accounts and balance sheet to be audited by a qualified auditor
appointed by the regulator.
(2)
“Qualified auditor” means a person eligible for appointment as auditor of the
registered provider’s ordinary accounts.
(3)
On completion of the audit, the auditor shall report to the regulator about such
20
matters and in such form as the regulator determines.
(4)
The registered provider shall pay the costs of the audit (including the auditor’s
remuneration).
Management and constitution
187
Non-profit providers only
25
This group of sections applies only to non-profit registered providers.
188
Industrial and provident society: change of rules
(1)
This section applies to an industrial and provident society.
(2)
The society must notify the regulator if it changes its—
(a)
name, or
30
(b)
registered office.
(3)
Any other amendment of the society’s rules is effective only if the regulator has
first consented.
(4)
The requirement in section 10(1) of the Industrial and Provident Societies Act
1965 (c. 12) (sending copies of amendment of rules to FSA) is satisfied only if
35
the copies are accompanied by a copy of the regulator’s consent.
(5)
This section shall be treated as if it formed part of that Act as well as of this Act.

Housing and Regeneration Bill
Part 2 — Regulation of Social Housing
Chapter 6 — Regulatory powers
73

189
Charity: change of objects
(1)
This section applies to a registered charity which is not a registered company.
(2)
An amendment of the charity’s objects is effective only if the Charity
Commission has first consented.
(3)
Before giving consent the Charity Commission must consult the regulator.
5
190
Companies: change of articles
(1)
This section applies to a registered company.
(2)
The company must notify the regulator if it changes its—
(a)
name, or
(b)
registered office.
10
(3)
An amendment of the company’s articles of association is effective only if the
regulator has first consented.
(4)
The requirement in section 30 of the Companies Act 2006 (c. 46) (sending copy
of resolution to registrar) is satisfied only if the copy is accompanied by a copy
of the regulator’s consent.
15
Guidance
191
General
The regulator may give guidance to registered providers.
192
Use of intervention powers
(1)
The regulator shall give registered providers guidance on how it uses and
20
intends to use powers under this Chapter and Chapter 7.
(2)
The regulator shall have regard to the guidance in exercising those powers.
193
Consultation
Before giving guidance the regulator must consult—
(a)
one or more bodies appearing to it to represent the interests of
25
registered providers,
(b)
one or more bodies appearing to it to represent the interests of tenants,
and
(c)
the HCA.
Managers of social housing
30
194
Accreditation
(1)
The regulator may operate a scheme for the purpose of accrediting persons
who provide services in connection with the management of social housing.
(2)
The regulator may approve a scheme operated by someone else for that
purpose.
35

Housing and Regeneration Bill
Part 2 — Regulation of Social Housing
Chapter 7 — Enforcement powers
74

(3)
Approval may be withdrawn.
(4)
A scheme may include provision about—
(a)
eligibility for accreditation;
(b)
standards to be met by accredited persons (which may operate by
reference to standards under section 173);
5
(c)
monitoring compliance;
(d)
complaints against accredited persons;
(e)
renewal, suspension and withdrawal of accreditation.
(5)
Accreditation, or continued accreditation, may be conditional on the payment
of fees.
10
(6)
Standards under section 173 may require a registered provider to ensure that
anyone providing services in connection with the management of its social
housing is accredited.
Chapter 7
Enforcement powers
15
Enforcement notice
195
Overview
This group of sections allows the regulator to require a registered provider to
take specified action to resolve a specified failure or other problem.
196
Grounds for giving notice
20
(1)
The regulator may give an enforcement notice to a registered provider if the
regulator is satisfied that—
(a)
any of the following cases applies, and
(b)
giving an enforcement notice is appropriate (whether it is likely to be
sufficient in itself or a prelude to further action).
25
(2)
Case 1 is where the registered provider has failed to meet a standard under
section 173 or 174.
(3)
Case 2 is where the affairs of the registered provider have been mismanaged.
(4)
Case 3 is where the interests of tenants of the registered provider require
protection.
30
(5)
Case 4 is where the assets of the registered provider require protection.
(6)
Case 5 is where the registered provider has given an undertaking under section
121 and failed to comply with it.
(7)
Case 6 is where an offence under this Part has been committed by the
registered provider.
35
(8)
Where the regulator is satisfied that an offence under this Part has been
committed in respect of a registered provider but by another person (such as a
member, employee or agent of the registered provider)—
(a)
Case 6 applies,

Housing and Regeneration Bill
Part 2 — Regulation of Social Housing
Chapter 7 — Enforcement powers
75

(b)
the regulator may give an enforcement notice to the other person, and
(c)
this Chapter applies with the substitution of references to that other
person for references to the registered provider.
197
Content
An enforcement notice must—
5
(a)
specify the grounds on which it is given,
(b)
specify the action the regulator wants the registered provider to take in
response to the notice,
(c)
specify when the action is to be taken (which may be immediately on
receipt of the notice), and
10
(d)
explain the effect of sections 200 to 202.
198
Warning
(1)
Before giving an enforcement notice to a registered provider the regulator
must give the provider a notice (a “pre-enforcement warning”)—
(a)
specifying grounds on which the regulator thinks an enforcement
15
notice could be given,
(b)
warning the provider that the regulator is considering giving an
enforcement notice in respect of specified matters,
(c)
specifying the action that the enforcement notice might require the
registered provider to take, and
20
(d)
explaining the effect of sections 199 to 202.
(2)
If the regulator gives a pre-enforcement warning it must send a copy to—
(a)
the HCA, and
(b)
any other persons it thinks appropriate.
(3)
For the purposes of subsection (2)(b) the regulator shall consider, in particular,
25
any person who provided information as a result of which the pre-enforcement
warning is given.
(4)
A pre-enforcement warning must—
(a)
refer to section 121 (voluntary undertaking), and
(b)
indicate whether or to what extent the regulator would accept a
30
voluntary undertaking instead of, or in mitigation of, an enforcement
notice.
(5)
A pre-enforcement warning may be combined with notice under one or more
of sections 208, 218, 224 and 228.
199
Representations
35
(1)
A pre-enforcement warning must specify a period during which the registered
provider may make representations to the regulator.
(2)
The period must—
(a)
be a period of at least 28 days, and
(b)
begin with the date on which the registered provider receives the pre-
40
enforcement warning.
(3)
After the end of the period the regulator shall—

Housing and Regeneration Bill
Part 2 — Regulation of Social Housing
Chapter 7 — Enforcement powers
76

(a)
consider any representations made, and
(b)
decide whether to give an enforcement notice.
200
Appeal
A registered provider who is given an enforcement notice may appeal to the
High Court.
5
201
Withdrawal
The regulator may withdraw an enforcement notice by notice to the registered
provider.
202
Sanction
(1)
If a registered provider does not comply with an enforcement notice the
10
regulator shall consider exercising another power under Chapter 6 or this
Chapter.
(2)
In the case of an enforcement notice given to a person other than the registered
provider by virtue of section 196(8), the regulator may only—
(a)
exercise the power to issue a penalty notice to the person in accordance
15
with the next group of sections, or
(b)
take steps to have the person prosecuted for the offence by reference to
which the enforcement notice was given.
(3)
A person to whom an enforcement notice is given on the ground in Case 6 of
section 196 may not be prosecuted for the offence by reference to which the
20
enforcement notice was given unless the person fails to comply with the
enforcement notice.
Penalty
203
Overview
This group of sections allows the regulator to penalise failures on the part of
25
registered providers by the imposition of fines.
204
Grounds for imposition
(1)
The regulator may require a registered provider to pay a penalty if the
regulator is satisfied that—
(a)
any of the following cases applies, and
30
(b)
the imposition of a penalty is appropriate (whether or not as part of a
response including other action).
(2)
Case 1 is where the registered provider has failed to meet a standard under
section 173 or 174.
(3)
Case 2 is where the affairs of the registered provider have been mismanaged.
35
(4)
Case 3 is where the registered provider has failed to comply with an
enforcement notice.

Housing and Regeneration Bill
Part 2 — Regulation of Social Housing
Chapter 7 — Enforcement powers
77

(5)
Case 4 is where the registered provider has given an undertaking under section
121 and failed to comply with it.
(6)
Case 5 is where an offence under this Part has been committed by the
registered provider.
(7)
Where the regulator is satisfied that an offence under this Part has been
5
committed in respect of a registered provider but by another person (such as a
member, employee or agent of the registered provider)—
(a)
Case 5 applies,
(b)
the regulator may require the other person to pay a penalty, and
(c)
this Chapter applies with the substitution of references to that other
10
person for references to the registered provider.
(8)
In order to rely on Case 5 the regulator must be satisfied beyond reasonable
doubt that it applies.
205
Imposition
(1)
A penalty is imposed by the regulator giving notice (a “penalty notice”) to the
15
registered provider.
(2)
The notice must specify—
(a)
the grounds on which the penalty is imposed,
(b)
the amount of the penalty, and
(c)
a period within which it must be paid.
20
(3)
The Secretary of State—
(a)
shall make regulations about the period under subsection (2)(c),
(b)
may make other regulations about the form and content of a penalty
notice, and
(c)
may make regulations about the manner in which a penalty notice is
25
given.
206
Impact
(1)
This section applies when the regulator is considering whether to require a
registered provider to pay a penalty.
(2)
The regulator must take account of any information available to it about the
30
financial situation of the registered provider.
(3)
The regulator must consider the likely impact of the penalty on the registered
provider’s ability to provide services.
(4)
In particular, the regulator must aim to avoid—
(a)
jeopardising the financial viability of the registered provider,
35
(b)
preventing the registered provider from honouring financial
commitments, or
(c)
preventing the registered provider from taking action to remedy the
matters on the grounds of which the penalty might be imposed.