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Clause 158 - Section 157: supplemental
448. Subsection (1) specifies that this clause applies to property transferred to the regulator in accordance with clause 157(2)(a).
449. Subsection (2) specifies that the regulator may only dispose of property transferred to it under clause 157(2)(a) to another registered provider.
450. Subsection (3) applies if the registered provider dissolved or wound up under clause 157(1) is a charity. It specifies that any property transferred to the regulator under clause 157(2)(a) from a charity may only be disposed of to a registered provider that is both a charity and has objects that are similar to those of the charity from which the property was transferred to the regulator.
451. Subsection (4) provides that if the property transferred to the regulator from the charity wound up or dissolved under clause 157(1) is subject to a mortgage or charge, the regulator may either dispose of that land subject to that mortgage or charge, or subject to a new mortgage or charge in favour of the regulator.
Clause 159 - Extension of clauses 157 and 158
452. This clause reserves a power for the Secretary of State to provide, through regulations, for the application of clauses 157 and 158 in respect of registered providers that are charities, but are not registered companies, either in specified circumstances or with specified modifications.
Chapter 5 - Disposal of property
Introductory
Clause 160 - Overview
453. This clause provides an overview of the Chapter.
Clause 161 - Power to dispose
454. This clause states that a registered provider may dispose of land, subject to the following provisions of this Chapter, including those which require the regulator's consent for certain disposals.
455. This clause replaces section 8 of the 1996 Act which gives RSLs power to dispose of land subject to section 9 of that Act. Note that the reference in section 8(2) of the 1996 Act to section 39 of the Settled Land Act 1925 is replaced by clause 170 of this Bill.
Regulator's consent
Clause 162 - Requirement of consent
456. Subsection (1) states that any disposal of land by a non-profit registered provider requires the regulator's consent unless it falls within an exception.
457. This re-enacts section 9(1) of the 1996 Act.
458. Subsection (2) states that any disposal of social housing by a profit-making registered provider requires the regulator's consent unless it falls within an exception. It only applies to social housing, rather than any land, because profit-making registered companies may be involved in other activities which are not social housing and which are not therefore within the scope of regulation.
Clause 163 - Exceptions
459. This clause lists exceptions to the requirement of consent in clause 162.
460. Subsection (2) states that consent is not required for disposal by way of:
(b) an assured agricultural occupancy,
(c) an agreement that would be an assured tenancy of an assured agricultural occupancy but for any of paragraphs 4 to 8 or paragraph 12(1)(h) of Schedule 1 to the Housing Act 1988 (exclusions),
(e) an arrangement that would be a secure tenancy but for any of paragraphs 2 to 12 of Schedule 1 to the Housing Act 1985 (exclusions).
461. This makes clear that consent is not required for residential tenancies. It replaces section 10(1) of the 1996 Act.
462. Subsection (3) states that consent is not required for a disposal to which section 81 or 133 of the Housing Act 1988 applies (disposals requiring consent of Secretary of State). This replaces section 10(2) of the 1996 Act.
463. Subsection (4) states that consent is not required for a disposal under Part V of the Housing Act 1985 (right to buy).
464. Subsection (5) states that consent is not required for a disposal in pursuance of a tenant's right to acquire under section 16 of the 1996 Act.
465. Subsections (4) and (5) together replace section 10(3) of the 1996 Act.
Clause 164 - Procedure
466. This clause sets out the procedure for the regulator giving his consent to disposals.
467. Subsection (1) states that consent may be either general or specific. Together with subsection (4) (which states that consent may be conditional), this replaces section 9(2) of the 1996 Act. This allows the regulator to give consent either for a broad class of disposals, or for individual properties, or properties belonging to an individual landlord.
468. Subsection (2) states that consent may be retrospective.
469. Subsection (3) states that consent may be expressed by reference to a policy for disposal submitted by a registered provider.
470. Subsection (5) requires the regulator, in giving a consent, to consult:
b) one or more bodies appearing to it to represent the interests of registered providers, and
c) one or more bodies appearing to it to represent the interests of tenants.
471. Subsection (6) states that subsection (5) does not apply to specific consent relating only to one or more particular registered providers or properties. The regulator would therefore have to consult the bodies listed before giving a general consent which covered a wide range of properties, or properties owned by a large number of bodies, but not when giving a specific consent.
Clause 165 - Disposal without consent
472. This clause states that a disposal by a registered provider is void if it required the regulator's consent and that consent had not been given, unless the disposal is by a non-profit registered provider, of a single dwelling, and the provider reasonably believes at the time of the disposal that the buyer intends to use the property as their principal residence. This replaces the provision in section 9(4) of the 1996 Act and aims to protect individual purchasers if they unwittingly purchased a home from a registered provider who did not have consent to dispose of the property.
Proceeds
Clause 166 - Separate accounting
473. This clause provides for certain disposal proceeds to be paid into a separate "disposal proceeds fund". It sets out which proceeds are "net disposal proceeds" and gives the regulator power to determine net proceeds of sale and the method of constituting the fund and showing it in the accounts.
Tenants' rights and duties
Clause 167 - Application of Housing Act 1996
474. This clause provides that sections 11 to 15 and 16 to 17 of the 1996 Act continue to have effect in relation to social housing in England, except for the modifications set out in subsection (3) which replace the terms "RSL and "Relevant Authority" with "Registered provider" and "The regulator" respectively.
Miscellaneous
Clause 168 - Unregistered housing associations
475. This clause amends sections 9(1A)(a) and (6)(a), and 10(1)(a) of the Housing Associations Act 1985 to substitute "the Regulator of Social Housing" for "the Housing Corporation". This means that the regulator takes on the Housing Corporation's functions in relation to the disposal of grant-funded properties by unregistered housing associations.
Clause 169 - Former registered providers
476. This clause ensures that clauses 161 to 165 (provisions on disposals) continue to apply in respect of any property owned by a person at the time it was registered. This is equivalent to section 9(6) of the Housing Act 1996.
Clause 170 - Trustees
477. This clause replaces the first sentence of section 8(2) of the 1996 Act.
Clause 171 - Charities
478. This clause makes it clear that nothing in this Chapter authorises a charity to effect a disposal which it would otherwise not have power to effect. This replaces the second sentence of section 8(2) of the 1996 Act.
Chapter 6 - Regulatory powers
Clause 172 - Overview
479. Clause 172 describes the contents of Chapter 6.
Standards
Clause 173 - Provision of social housing
480. Subsection (1) of clause 173 gives the regulator the power to set standards for registered providers in respect of the social housing that they own. These standards may be in relation to the nature and extent of the social housing provided by them, and to the nature, extent and quality of accommodation, facilities and services provided by them in connection with social housing.
481. Subsection (2) of this clause further provides that the standards that the regulator sets under subsection (1) may incorporate rules in relation to the matters set out in paragraphs (a) to (l) of subsection (2) as follows:
a) the nature of the housing demands to be addressed,
b) the extent to which demand is to be supplied,
c) criteria for allocating accommodation,
e) levels of rent (and the rules may, in particular, include provision for minimum or maximum levels of rent or of increase or decrease of rent),
f) maintenance and repair,
g) procedures for addressing complaints by tenants against landlords,
h) methods for consulting and informing tenants,
i) methods of enabling tenants to influence or control the management of their accommodation and environment,
j) anti-social behaviour,
k) landlords' contribution to the environmental, social and economic well-being of the areas in which their property is situated, and
Clause 174 - Management
482. This clause gives the regulator the power to set standards that relate to the financial viability and management of the organisation, and to its governance arrangements. These standards will apply only to registered non-profit providers. The regulator will not be able to set standards on governance and financial viability for profit-making providers.
Clause 175 - Code of Practice
483. Subsection (1) of this clause gives the regulator a power to issue a code of practice which relates to, clarifies or amplifies standards issued under clauses 173 and 174.
484. Subsection (2) of this clause gives the regulator the power to have regard to codes of practice issued under subsection (1) when considering whether registered providers have met the requirements of standards issued under clauses 173 and 174.
485. Subsection (3) of this clause gives the regulator the power to revise or withdraw a code of practice issued under subsection (1).
486. Subsection (4) of this clause requires the regulator to bring a code of practice issued under subsection (1) to the attention of registered providers.
Clause 176 - Consultation
487. This clause provides that the regulator, before he sets standards under his powers in clauses 173 and 174, must consult bodies representative of both registered providers and the tenants of registered providers, the HCA and the Secretary of State, or ensure that they have been consulted.
Clause 177 - Direction by Secretary of State
488. Subsection (1) gives the Secretary of State power to direct the regulator to set a standard under clause 173 or about the content of a standard under that clause. Subsection (3) provides that the regulator must comply with any direction given and subsection (4) requires that the direction must be published.
489. Subsection (2) requires the Secretary of State to consult the regulator, the HCA, and bodies appearing to the Secretary of State to represent the interests of tenants and of registered providers before giving a direction. Subsection (5) states that the requirement for the regulator to consult before setting a standard (set out in clause 176) does not apply if and in so far as the regulator is complying with a direction.
490. There is a much broader provision in section 76 of the Housing Associations Act 1985 which enables the Secretary of State to "give directions to the Corporation as to the exercise of its functions". Under the new system, the Secretary of State's direction-making power is limited to the setting of standards.
Clause 178 - Supplemental
491. Subsection (1) specifies that failure to meet standards set under clauses 173 or 174 will be grounds for exercising the powers of the regulator to intervene and enforce compliance as set out in Chapter 7.
492. Subsection (2) of this clause specifies that the regulator, having set standards, must make arrangements to bring them to the attention of those registered providers to whom the standards apply.
493. Subsection (3) of this clause gives the regulator the power to revise or withdraw standards that have been previously set under powers in clauses 173 and 174. If this power is exercised by the regulator, the same requirements for consultation that are set out in clause 176 will apply as when standards are originally set.
494. Subsection (4) of this clause provides that standards set by the regulator under clauses 173 and 174 may apply generally or may be limited in their application, and that the standards may be different for different cases, circumstances or areas.
Monitoring
Clause 179 - Survey
495. Subsection (1) specifies that this section applies where the regulator suspects that a registered provider is failing to maintain the premises to be surveyed, in accordance with standards, as specified under clauses 173 or 174 of this Part.
496. Subsection (2) gives the regulator the power to arrange for the survey of the condition of identified homes by a person authorised by it.
497. Subsection (3) defines "authorised person" for the purposes of subsection (2) as a member of the regulator's staff or any other person who has been authorised in writing by the regulator for the purposes of carrying out a survey under this power.
498. Subsection (4) provides that the authorised person may enter the premises at any reasonable time to carry out the survey.
499. Subsection (5) specifies that the authorised person must give the registered provider a minimum of 28 days' notice of the survey.
500. Subsection (6) requires that the registered provider who has received the notice required under subsection (5) must then give each occupier of the premises to be surveyed a minimum of 7 days' notice of the survey.
501. Subsection (7) requires the authorised person to provide a written report of their survey.
502. Subsection (8) requires the regulator to provide the registered provider of the premises surveyed with a copy of the report produced under subsection (7).
Clause 180 - Survey: supplemental
503. Subsection (1) provides that the authorised person carrying out the survey, or seeking entry to the premises to carry out the survey must, when requested by the occupier, provider to that person a copy of the authorisation to carry out the survey.
504. Subsection (2) provides that the regulator may require the registered provider to pay some or all of the costs of the survey and the report.
505. Subsection (3) specifies that a registered provider who fails without a reasonable excuse to comply with the requirement to give occupiers due notice of a survey under clause 179 subsection (6) commits an offence. Similarly, a registered provider or an officer of a registered provider who obstructs an authorised person exercising the power to survey a premises under clause 179 also commits an offence.
506. Subsection (5) specifies that a person guilty of offences under subsections (3) or (4) is liable on summary conviction to a fine not exceeding level 3 (currently £1000) on the standard scale.
Clause 181 - Inspection
507. This clause provides for the regulator to inspect registered providers to ascertain their performance in respect of standards of social housing provision.
508. Subsection (2) provides that such an inspection may either be general or specific. A general inspection may consider a range of the activities related to social housing provision. A specific inspection may be in respect of only one of those tasks, or may be in respect of only specific parts of a registered provider's social housing stock. For example, following information from a tenant or local authority that a provider is not meeting compulsory repair standards on an estate, the regulator may authorise a specific inspection of repairs on that estate to determine if intervention is needed.
509. Subsection (3) specifies that the regulator must prepare a report of the inspection, must provide a copy of that report to the registered provider, and may publish the report and related information, but is not obliged to do so.
510. Subsection (4) provides that the Secretary of State may by order authorise the regulator to charge fees for inspections carried out under this clause.
511. Subsection (5) requires a registered provider to pay any fee charged for inspection.
512. Subsection (6) provides that the Secretary of State must consult with the regulator and bodies representative of registered providers before making an order under subsection (4).
513. Subsection (7) requires the regulator to set out a scale of fees for inspections having consulted the Secretary of State and bodies representative of registered providers.
Clause 182 - Performance information
514. This clause gives the regulator a power to require registered providers to prepare an annual report containing an assessment of its performance in relation to any standards the regulator has set under clauses 173 and 174, and to send that report to the regulator within a specified period.
515. The regulator can specify in detail what the reports prepared by registered providers must cover.
516. Subsection (3) specifies that it is an offence not to comply with a requirement made by the regulator under this clause without a reasonable excuse.
517. The penalty for any person found guilty of that offence on summary conviction will be a fine of up to level 5 (currently £5000) on the standard scale. Either the regulator or the Director of Public Prosecutions must bring proceedings for this offence, or must consent to such proceedings.
Clause 183 - Inquiry
518. This clause gives the regulator the power to hold an inquiry if it believes that there may have been mismanagement by a registered provider of its affairs in relation to social housing. "Mismanagement" is defined in clause 238.
519. Subsections (2) to (4) provide that the regulator will appoint one or more individuals to conduct the inquiry, of which at least one must be independent of the regulator. These individuals are the "inquirers" for the purpose of these clauses. Individuals are independent of the regulator if they are not members or employees of the regulator now or at any point within the previous five years.
Clause 184 - Inquiry: supplemental
520. The individuals appointed by the regulator to conduct the inquiry will determine the procedure for the inquiry.
521. They may consider the affairs of any body that, at the time with which the regulator is concerned, was a subsidiary or associate of a registered provider. The meanings of "subsidiary" and "associate" are defined in clause 235.
522. The inquirers may make interim reports. They must make a final report on the matters to which they have been directed by the regulator. The regulator may publish all or part of either interim reports or the final report produced by the inquirers.
523. Subsection (6) also provides that local authorities may contribute to the costs of an inquiry held by the regulator under these clauses.
Clause 185 - Inquiry: evidence
524. Subsection (1) gives the inquirer the power, by giving a notice, to require persons to attend at a specified time and place and either give evidence, or produce documents specified in the notice, or both of these.
525. Subsection (2) gives the inquirer the power to take evidence on oath, and to administer oaths for that purpose
526. Subsection (3) limits the power in subsection (1) so that it can only be exercised over persons or information that the regulator would have a power over under clause 104.
527. Subsection (4) specifies that the provisions of clause 104 (4) to (7),, and clause 105 apply to this clause modified as necessary to the specific purpose of the clause.
Clause 186 - Extraordinary audit
528. This clause replaces paragraph 22 of Schedule 1 to the 1996 Act.
529. Subsection (1) specifies that where the regulator has decided to hold an inquiry under clause 183, the regulator may require the registered provider to allow its accounts and balance sheet to be audited by a qualified auditor appointed by the regulator.
530. Subsection (2) defines "qualified auditor" for the purposes of this clause.
531. Subsection (3) requires the auditor appointed under subsection (1) to report to the regulator on the matters and in the form determined by the regulator, once the audit has been completed.
532. Subsection (4) specifies that the cost of the audit, including the auditor's remuneration, will be met by the registered provider.
Management and constitution
Clauses 187 - 190
533. These clauses re-enact the powers of the Housing Corporation in paragraphs 9 to 11 of Schedule 1 to the 1996 Act as powers of the regulator. These powers relate to changes to the constitutions of non-profit registered providers of social housing.
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