Housing and Regeneration Bill

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Housing and Regeneration Bill

Housing and Regeneration Bill
Part 2 — Regulation of Social Housing
Chapter 7 — Enforcement powers
78

207
Amount
(1)
In determining the amount of a penalty the regulator must consider the matters
specified in section 206(2) to (4).
(2)
The amount of a penalty imposed on the ground specified in Case 5 of section
204 may not exceed the maximum amount of fine that a magistrates’ court
5
could impose for the relevant offence.
(3)
The amount of a penalty imposed on the ground specified in any other Case of
that section may not exceed £5,000.
(4)
The Secretary of State may by order amend the amount specified in subsection
(3).
10
208
Warning
(1)
Before giving a penalty notice to a registered provider the regulator must give
the provider a notice (a “pre-penalty warning”)—
(a)
specifying grounds on which the regulator thinks a penalty could be
imposed,
15
(b)
warning the provider that the regulator is considering imposing a
penalty,
(c)
including any indication that the regulator is able to give of the likely
amount of any penalty, and
(d)
explaining the effect of sections 209 to 212.
20
(2)
If the regulator gives a pre-penalty 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,
any person who provided information as a result of which the pre-penalty
25
warning is given.
(4)
A pre-penalty warning must—
(a)
refer to section 121 (voluntary undertaking), and
(b)
indicate whether or to what extent the regulator would accept a
voluntary undertaking instead of, or in mitigation of, a penalty.
30
(5)
A pre-penalty warning may be combined with notice under one or more of
sections 198, 218, 224, 226, 228 and 232.
209
Representations
(1)
A pre-penalty warning must specify a period during which the registered
provider may make representations to the regulator.
35
(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-
penalty warning.
(3)
Representations may concern—
40
(a)
whether a penalty should be imposed;
(b)
the amount of any penalty that may be imposed.

Housing and Regeneration Bill
Part 2 — Regulation of Social Housing
Chapter 7 — Enforcement powers
79

(4)
After the end of the period specified under subsection (1) the regulator shall—
(a)
consider any representations made, and
(b)
decide whether to impose a penalty.
210
Destination
(1)
This section applies where the regulator receives money by way of penalty.
5
(2)
The regulator may deduct a sum which represents—
(a)
the direct costs to the regulator of imposing and enforcing the penalty,
and
(b)
a reasonable share of expenditure by the regulator which is indirectly
referable to the imposition and enforcement of the penalty.
10
(3)
Any excess shall be paid to the HCA, to be used for purposes which appear to
it to amount to investment in social housing.
211
Enforcement
(1)
A penalty shall be treated as a debt owed to the regulator.
(2)
The Treasury may make regulations authorising the regulator—
15
(a)
to charge interest on penalty not paid during the period specified under
section 205(2)(c);
(b)
to impose one or more additional penalties where a penalty is not paid
during that period.
(3)
Interest and additional penalty shall be treated as penalty (and may have the
20
effect of increasing the penalty above a limit set by section 207).
(4)
Regulations under subsection (2)(a) may provide for an interest rate to be—
(a)
set by a specified person, or
(b)
determined in accordance with the regulations.
(5)
A penalty notice may include provision allowing a discount if the penalty is
25
paid on or before a date specified in the notice (falling within the period
specified under section 205(2)(c)).
(6)
A person to whom a penalty notice is given on the ground in Case 5 of section
204 may not be prosecuted for the offence by reference to which the penalty
notice was given.
30
212
Appeal
A registered provider who is given a penalty notice may appeal to the High
Court against—
(a)
the imposition of the penalty,
(b)
its amount, or
35
(c)
both.

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Part 2 — Regulation of Social Housing
Chapter 7 — Enforcement powers
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Compensation
213
Overview
This group of sections allows the regulator to award compensation to a victim
of a failure on the part of a registered provider.
214
Grounds for award
5
(1)
The regulator may require a registered provider to pay compensation if the
regulator is satisfied that—
(a)
either of the following cases applies, and
(b)
the award of compensation is appropriate (whether or not as part of a
response including other action).
10
(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 registered provider has given an undertaking under section
121 and failed to comply with it.
215
Nature
15
(1)
Compensation in respect of a failure may be awarded to one or more persons
who have suffered as a result of the failure.
(2)
But an award may be made only to—
(a)
a specified tenant or occupier of social housing provided by the
registered provider,
20
(b)
each member of a specified class of tenants or occupiers of social
housing provided by the registered provider, or
(c)
each member of the class of tenants and occupiers of social housing
provided by the registered provider.
216
Social housing ombudsman compensation
25
(1)
The regulator may not award compensation to a person in respect of a matter
if an ombudsman appointed by virtue of section 120 has awarded
compensation to the person in respect of the matter.
(2)
But if compensation awarded by an ombudsman by virtue of section 120 has
not been paid as required, the regulator may award compensation.
30
217
Imposition
(1)
Compensation is awarded by the regulator giving notice (a “compensation
notice”) to—
(a)
the registered provider, and
(b)
the person to be compensated.
35
(2)
The notice must specify—
(a)
the grounds on which the compensation is awarded,
(b)
the amount of the compensation,
(c)
the person to be compensated, and

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Part 2 — Regulation of Social Housing
Chapter 7 — Enforcement powers
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(d)
a period within which it must be paid.
(3)
The Secretary of State—
(a)
shall make regulations about the period under subsection (2)(d),
(b)
may make other regulations about the form and content of a
compensation notice, and
5
(c)
may make regulations about the manner in which a compensation
notice is given.
218
Warning
(1)
Before giving a compensation notice to a registered provider the regulator
must give the provider a notice (a “pre-compensation warning”)—
10
(a)
specifying grounds on which the regulator thinks compensation could
be awarded,
(b)
warning the provider that the regulator is considering awarding
compensation to a specified person,
(c)
including any indication that the regulator is able to give of the likely
15
amount of any compensation, and
(d)
explaining the effect of sections 219 to 221.
(2)
If the regulator gives a pre-compensation warning it must send a copy to—
(a)
the HCA, and
(b)
any other persons it thinks appropriate.
20
(3)
For the purposes of subsection (2)(b) the regulator shall consider, in particular,
any person who provided information as a result of which the pre-
compensation warning is given.
(4)
A pre-compensation warning may be combined with notice under one or more
of sections 198, 208, 224 and 228.
25
219
Representations
(1)
A pre-compensation 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
30
(b)
begin with the date on which the registered provider receives the pre-
compensation warning.
(3)
Representations may address—
(a)
whether compensation should be awarded;
(b)
the amount of any compensation that may be awarded.
35
(4)
After the end of the period specified under subsection (1) the regulator shall—
(a)
consider any representations made, and
(b)
decide whether to award compensation.
220
Enforcement
(1)
Compensation shall be treated as a debt owed to the person to whom it is
40
awarded.

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Chapter 7 — Enforcement powers
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(2)
The Treasury may make regulations authorising the regulator—
(a)
to award interest on compensation not paid during the period specified
under section 217(2)(d);
(b)
to award additional compensation where compensation is not paid
during that period.
5
(3)
Interest and additional compensation shall be treated as compensation.
(4)
Regulations under subsection (2)(a) may provide for an interest rate to be—
(a)
set by a specified person, or
(b)
determined in accordance with the regulations.
221
Appeal
10
A registered provider who is given a compensation notice may appeal to the
High Court against—
(a)
the award of compensation,
(b)
its amount, or
(c)
both.
15
Management etc.
222
Overview
This group of sections gives the regulator various powers in relation to the
management and constitution of registered providers.
223
Management tender
20
(1)
This section applies if the regulator is satisfied that—
(a)
a registered provider has failed to meet a standard under section 173 or
174, or
(b)
the affairs of a registered provider have been mismanaged in relation
to social housing.
25
(2)
The regulator may require the registered provider to implement a process
specified by the regulator for the purpose of—
(a)
inviting persons to apply to undertake management functions of the
registered provider, and
(b)
selecting from the applications and making an appointment.
30
(3)
A requirement may relate to—
(a)
the registered provider’s affairs generally in so far as they relate to
social housing, or
(b)
specified affairs relating to social housing.
(4)
A requirement must include—
35
(a)
provision about the constitution of the selection panel (which must
include provision for ensuring representation of tenants’ interests),
(b)
provision for ensuring best procurement practice, and
(c)
provision about the terms and conditions on which the manager is to be
appointed (including provision about—
40
(i)
setting, monitoring and enforcing performance standards, and

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Chapter 7 — Enforcement powers
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(ii)
resources).
224
Section 223: supplemental
(1)
Before acting under section 223(2) the regulator must give the registered
provider a notice—
(a)
specifying grounds on which action might be taken under that section,
5
(b)
warning the provider that the regulator is considering action under that
section, and
(c)
explaining the effect of this section.
(2)
The provisions of section 199 apply to a notice under subsection (1) above as to
a pre-enforcement warning (with any necessary modifications).
10
(3)
The regulator must send a copy of a notice under subsection (1) to—
(a)
the HCA, and
(b)
any other persons it thinks appropriate (having regard, in particular, to
any person who provided information as a result of which the notice is
given).
15
(4)
A notice under subsection (1) must—
(a)
refer to section 121 (voluntary undertaking), and
(b)
indicate whether or to what extent the regulator would accept a
voluntary undertaking instead of, or in mitigation of, action under
section 223(2).
20
(5)
Notice under subsection (1) may be combined with notice under one or more
of sections 198, 208, 218 and 228.
(6)
In imposing a requirement the regulator must have regard to views of—
(a)
relevant tenants,
(b)
the registered provider,
25
(c)
the HCA, and
(d)
if the regulator thinks it appropriate, any relevant local housing
authority.
(7)
A registered provider may appeal to the High Court against a requirement
under section 223(2).
30
225
Management transfer
(1)
This section applies if as a result of an inquiry under section 183 or an audit
under section 186 the regulator is satisfied that—
(a)
a registered provider has failed to meet a standard under section 173 or
174,
35
(b)
the affairs of a registered provider have been mismanaged in relation
to social housing, or
(c)
a transfer of certain of a registered provider’s management functions
would be likely to improve the management of some or all of its social
housing.
40
(2)
The regulator may require the registered provider to transfer management
functions to a specified person.
(3)
A requirement may relate to—

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Chapter 7 — Enforcement powers
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(a)
the registered provider’s affairs generally in so far as they relate to
social housing, or
(b)
specified affairs relating to social housing.
(4)
Transfer shall be on terms and conditions (including as to remuneration)
specified in, or determined in accordance with, the requirement.
5
(5)
A transferee manager shall have—
(a)
any power specified in the requirement, and
(b)
any other power in relation to the registered provider’s affairs required
by the manager for the purposes specified in the requirement
(including the power to enter into agreements and take other action on
10
behalf of the registered provider).
226
Section 225: supplemental
(1)
Before acting under section 225(2) the regulator must give the registered
provider a notice—
(a)
specifying grounds on which action might be taken under that section,
15
(b)
warning the provider that the regulator is considering action under that
section, and
(c)
explaining the effect of this section.
(2)
The provisions of section 199 apply to a notice under subsection (1) above as to
a pre-enforcement notice (with any necessary modifications).
20
(3)
The regulator must send a copy of a notice under subsection (1) to—
(a)
the HCA, and
(b)
any other persons it thinks appropriate (having regard, in particular, to
any person who provided information as a result of which the notice is
given).
25
(4)
A notice under subsection (1) must—
(a)
refer to section 121, and
(b)
indicate whether or to what extent the regulator would accept a
voluntary undertaking under that section instead of, or in mitigation of,
action under section 225(2).
30
(5)
Notice under subsection (1) may be combined with notice under one or more
of sections 198, 208, 218, 224, 228 and 232.
(6)
A registered provider may appeal to the High Court against a requirement
under section 225(2).
227
Appointment of manager
35
(1)
This section applies if the regulator is satisfied that—
(a)
a registered provider has failed to meet a standard under section 173 or
174, or
(b)
the affairs of a registered provider have been mismanaged in relation
to social housing.
40
(2)
The regulator may—
(a)
appoint a manager of the registered provider, or
(b)
require the registered provider to appoint a manager.