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Clause 242 - Certificates for new homes

700.     This clause places a duty on a person selling a newly constructed residential property to give the purchaser of the property information about the sustainability of the new property free of charge before the sale is agreed. This information is in the form of either a sustainability certificate or a statement that there is no sustainability certificate for the property (subsections (1), (2), (4) and (9)).

701.     The sustainability certificate can be given as either an interim certificate (if the property has not been completed yet) or a final certificate (available after the property has been built and assessed). Where an interim certificate is given before sale, the final certificate must be given at a later point to be prescribed in regulations, which may be after the sale is completed (subsections (3), (10) and (11))

702.     The clause provides for powers to make regulations to bring forward the point at which a sustainability certificate or statement of non-assessment must be supplied, to make exceptions to the duties under the clause, and to provide for alternative duties where such exceptions apply (subsections (5), (6) and (7)). There is a defence of reasonable excuse for not complying with any of duties in this clause (subsection (8)).

Clause 243 - Meaning of sustainability

703.     This clause defines the sustainability of a residential property in relation to the materials used in the property, other aspects of its design and construction, and any services, fittings and equipment provided in or in connection with the property (as well as related demolition and off site activities). Sustainability is the extent to which prescribed sustainability standards are met in these respects (subsections (1) and (4)).

704.     Sustainability standards will be prescribed in regulations by the appropriate national authority for ensuring or furthering the following listed purposes (subsection (2)):

    a)     health, safety, welfare and convenience of people in or about the property, and others who may be affected by it;

    b)     efficient management of the property and of its construction;

    c)     energy efficiency;

    d)     water efficiency and minimising flood risk;

    e)     efficient waste management;

    f)     protecting or enhancing the environment; and

    g)     preventing or detecting crime.

705.     The appropriate national authority can by regulations amend this list of purposes from time to time by adding to, removing or altering the items listed (subsection (3)).

Clause 244 - Authorised assessors

706.     This clause ensures that assessments of sustainability for residential properties are carried out only by authorised assessors. The appropriate national authority must by regulations specify who are to be authorised assessors, and may make further provision about them (subsections (1), (2) and (3)).

707.     Regulations may specify that authorised assessors be accredited under an accreditation scheme established or approved by the appropriate national authority, and may provide for the charging of fees under accreditation schemes (subsections (4), (5) and (6)).

708.     Regulations concerning accreditation schemes must require the appropriate national authority to be satisfied that any scheme approved contains adequate provision for -

    a)     ensuring that members of the scheme are fit and proper persons who are qualified to carry out assessments;

    b)     ensuring that a code of conduct for members of the scheme is maintained and published;

    c)     ensuring that members of the scheme have suitable indemnity insurance;

    d)     facilitating the resolution of complaints against members;

    e)     requiring certificates issued by members to be entered into the register of certificates (see paragraph on clause 245;

    f)     keeping a public register of members of the scheme; and

    g)     such other purposes as may be specified in the regulations (subsections (7) and (8)).

709.     Regulations may also provide for accreditation schemes to contain provision about certificates and other documents within the scope of the scheme including the terms on which they may be provided (subsection (9)).

Clause 245 - Register of certificates

710.     This clause empowers the appropriate national authority to make regulations about a register of sustainability certificates (subsection (1)). Regulations may also provide for interim certificates and other documents to be included on the register (subsections (9) and (10)).

711.     The regulations under subsection (1) may provide in particular (subsection (2)) for:

  • the register to be kept by or on behalf of the appropriate national authority or by such other person as the regulations may specify (subsection (3));

  • the payment of a fee to enter a document onto the register (subsection (4)); and

  • preventing the disclosure of the register or documents or information in it except in accordance with the regulations (subsection (5));

  • the circumstances in or purposes for which the register may, on payment of any fee, be inspected, documents or information may be copied or given, and disclosure made of anything so obtained (subsections (6) and (7)),

712.     Contravention of a prohibition on disclosure from the register is a summary offence punishable by a fine not exceeding level 5 on the standard scale, currently £5,000 (subsection (8)).


Clause 246 - Enforcement authorities

713.     This clause provides for every local weights and measures authority to enforce the duties in clause 242 in its area.

Clause 247 - Power to require production of certificates or statements

714.     This clause empowers officers of an enforcement authority to require a seller of a newly constructed residential property to produce for inspection (or to provide a hard copy) of the sustainability certificate or statement of non-assessment (subsections (1) to (3)). The request may be made up to six months after the last day on which the person concerned could have complied with the duty under clause 242, and must be complied with within 7 days (subsections (4) and (6)). The duty in this clause is subject to a defence of reasonable excuse for not complying with it (subsection (5)).

Clause 248 - Penalty charge notices

715.     This clause provides for enforcement officers to give a penalty charge notice to a person the officer believes has committed a breach of the duties set out in clause 242 or any regulations made under it or in clause 247. The notice may be given up to six months from the commission of the breach (subsections (1) and (2)). Schedule 8 has effect in relation to penalty charge notices (subsection (3)).

Clause 249 - Offences relating to enforcement officers

716.     This clause provides for offences of obstructing an enforcement officer acting in pursuance of his duties under the Chapter (subsection (1)), and of impersonating an enforcement officer by purporting to act as one in pursuance of either clause 247 or clause 248 (subsection (2)). Both are punishable on summary conviction with a fine not exceeding level 5 on the standard scale, currently £5,000 (subsection (3)).


Clause 250 - Grants

717.     This clause allows the appropriate national authority to make grants towards the development and subsequent operation of a register under clause 245 (subsection (1)(a)). Grants may also be made towards the development and operation of accreditation schemes or any other provision to be made in regulations under the Chapter (subsection (1)(b)). Such a grant may be subject to conditions including conditions for the purposes for which it may be used, and for full or partial repayment of it in specified circumstances (subsection (2)).

Clause 251 - Suspension of duties

718.     This clause allows the appropriate national authority, by regulations, to suspend and revive the operation of any duty imposed by clause 242 (subsection (1)). Suspension may be for a specified time only, and a duty that has been revived may be suspended again (subsections (2) and (3)).

Clause 252 - Disclosure of certificates

719.     This clause empowers the appropriate national authority to make regulations about the disclosure of sustainability and interim certificates, statements of non-assessment, any information derived from such documents, and any information collected by an authorised assessor in preparing a certificate (subsection (1)). The disclosure without reasonable excuse of anything whose disclosure is prohibited by regulations under subsection (1) is a summary offence punishable by a fine not exceeding level 5 on the standard scale, currently £5,000 (subsection (2)).

Clause 253 - General powers to make regulations

720.     This clause allows the appropriate national authority to make provision for the general purposes, or any particular purpose of the Chapter, or in consequence of any provision made under the Chapter or for giving full effect to it (subsection (1)). Such regulations may in particular provide for:

  • the form and content of certificates and statements of non-assessment, or for the form and content of such documents to be such as the appropriate national authority may approve;

  • ways in which sustainability standards can be met;

  • the issue of guidance; and

  • any interaction between provision under the Chapter with provision made by other enactments in relation to home information packs or energy performance certificates (subsections (2) to (4)).

Clause 254 - Powers to extend Chapter

721.     This clause allows the appropriate national authority to extend the provisions of the Chapter to:

  • non-residential buildings;

  • newly converted buildings, both residential and non-residential ; or

  • prescribed descriptions of properties within any of these categories (subsections (1), (2) and (5)).

722.     A property is newly converted for the purposes of the Chapter if it has been converted but not yet used for its intended purpose, is being converted, or its conversion is being designed (subsection (3)), and regulations may provide for the circumstances in which a building is to be treated as converted (subsection (4)).

723.     The clause further allows for the appropriate national authority to broaden by regulations the definition of a purchaser in clause 255(1) so as to include descriptions of persons who are taking steps with a view to deciding whether to purchase residential properties (subsections (6) and (7)).

Clause 255 - Chapter 1: interpretation etc.

724.     This clause provides for definitions of terms and phrases used in the Chapter (subsections (1) to (7)). Subsection (1) defines a purchaser as a person who has made an offer to purchase a property or has purchased it. Non-compliance with any requirement of the Chapter does not invalidate a sale or purchase of a property (subsection (8)).

Clause 256 - Index of defined expressions: Chapter 1

725.     This clause presents the main definitions in the Chapter in tabular form.

Chapter 2 - Landlord and tenant matters

Tenant empowerment

Clause 257 - Ballots before certain disposals to private landlords

726.     Clause 257 makes amendments to Schedule 3A to the Housing Act 1985. Schedule 3A outlines the consultation process necessary before a local housing authority can seek the consent of the Secretary of State to transfer ownership of occupied council housing to a private sector landlord (eg a housing association). The amendments add the requirement that the local authority must hold a ballot of affected tenants as part of the consultation process, and that a vote in such a ballot against transfer will prevent the Secretary of State granting consent to the transfer. The powers of the Secretary of State are exercisable in Wales by the Welsh Ministers.

727.     Subsection (2) sets out at what stage in the consultation process the ballot should take place, requires the local authority to conduct the ballot themselves or appoint an appropriate person to do so, and requires that, once the result of the ballot is known, the local authority must inform tenants of the result and, where the local authority intends proceeding with the transfer, inform them that they can, within 28 days, raise any concerns with the Secretary of State or (as the case may be) the Welsh Ministers.

728.     Subsection (3) establishes that the Secretary of State cannot grant consent to a transfer where the majority of those voting in the ballot vote against the proposal.

729.     Subsections (4) and (5) establish that these new provisions do not apply to consultations that have already begun, and make clear at what point a consultation can be deemed to have begun.

Clause 258 - Management agreements: extending requirements to co-operate

730.     Clause 258 amends section 27AB of the Housing Act 1985. Section 27AB provides powers to the Secretary of State to make regulations requiring local housing authorities to enter into agreements with tenant management organisations over the management of their council housing. The amendments extend the list of what those regulations might include, and make other minor provisions. The powers of the Secretary of State are exercisable in Wales by the Welsh Ministers.

731.     Subsection (2) permits the regulations to require the local authority to submit certain information to the tenant management organisation, and to require permits that the local authority co-operate in certain ways with that organisation.

732.     Subsection (3) permits the regulations to determine that particular questions be determined by the person making the regulations as well as the authority, to set time limits on carrying out the requirements of the regulations, and to require that persons exercising functions under the regulations act in accordance with guidance or directions issued by the Secretary of State.

Clause 259 - Requirements to co-operate in relation to certain disposals of land

733.     Clause 259 adds a new section 34A to the Housing Act 1985.

734.     Section 34A(1) gives the appropriate person (in England the Secretary of State, in Wales the Welsh Ministers) powers to make regulations where a local housing authority has been served a notice by a group of tenants requesting a transfer of occupied council housing from ownership of the local housing authority to a named registered private sector landlord (e.g. a housing association).

735.     Section 34A(2) sets out requirements that may be placed on the local housing authority in the regulations. These comprise:

  • providing assistance to the tenants (which could be financial support, accommodation, other facilities or training);

  • arranging a feasibility study to look into the tenants' proposals;

  • providing information to the tenants;

  • co-operating in certain ways with the tenants;

  • arranging ballots with respect to the proposals; and

  • entering into an agreement for the disposal.

736.     Section 34A(3) sets out two further matters that might be included:

  • provision identifying the land and houses affected by the proposal, and

  • provision requiring that the agreement between the local housing authority and the private sector landlord be in a form approved by the appropriate person.

737.     Section 34A(4) sets out further procedural arrangements that might be included in the regulations:

  • provision that certain questions arising from the regulations be answered by the authority or the appropriate person;

  • setting time limits for carrying out requirements set in the regulations; and

  • requiring persons exercising functions under the regulations to act in accordance with guidance or directions given by the appropriate person.

738.     The regulations are subject to the negative resolution procedure.

Family intervention tenancies

Clause 260 - Family intervention tenancies: general

739.     This clause will enable local housing authorities and registered social landlords to offer tenancies which will not be secure or assured tenancies to certain tenants who have lost or are potentially at risk of losing their secure or assured tenancy. These tenancies will be offered for the purposes of providing behavioural support services to tenants against whom a possession order for anti-social behaviour has been made or to tenants who could face possession proceedings on the grounds of anti-social behaviour.

740.     Subsection (1) inserts a new paragraph 4ZA into Schedule 1 of the Housing Act 1985 (tenancies which are not secure tenancies).

741.     Sub-paragraph (1) of the new paragraph provides that family intervention tenancies are not secure tenancies.

742.     Sub-paragraph (2) provides that the tenancy can become a secure tenancy if the landlord so notifies the tenant.

743.     Sub-paragraph (3) defines a family intervention tenancy for the purposes of this paragraph as a tenancy granted by a local authority to a person for the purposes of the provision of behaviour support services and against whom a possession order in respect of another dwelling house:

  • has been made in relation to a secure tenancy on the grounds of anti-social behaviour or;

  • could have been so made in relation to a secure tenancy; or

  • could have been so made if the tenant had had such a tenancy.

744.     Sub-paragraph (4) provides the new tenancy will not be a family intervention tenancy unless the local housing authority has served a notice under sub-paragraph (5).

745.     Sub-paragraph (5) provides the information the notice must contain including that the tenant is under no obligation to enter into the tenancy or to surrender any existing tenancy or possession of a dwelling house. Entry into the tenancy will be voluntary.

746.     Sub-paragraph (6) provides that the contents of the notice may be amended by regulations made by statutory instrument. The regulations may contain transitional, transitory or saving provisions. These regulations will be subject to negative resolution.

747.     Sub-paragraph (9) provides definitions for the terms used in the new paragraph 4ZA. "Behaviour support services" is defined as support services provided by any person to the new tenant or persons living with them for the purposes of preventing the anti-social behaviour which has led to the local authority taking the possession action it has or of being of the opinion that such a possession claim could be made.

748.     Subsection (2) inserts new paragraph 12ZA into Part 1 of Schedule 1 to the Housing Act 1988 (tenancies which cannot be assured tenancies).

749.     New paragraph 12ZA mirrors the provisions in new paragraph 4ZA above in respect of family intervention tenancies granted by registered social landlords.

750.     Subsection (3) provides that the new provisions in new paragraph 4ZA of Schedule 1 to the Housing Act 1985 and paragraph 12ZA to the Housing Act 1988 will not apply to any tenancy granted before this section comes into force.

Clause 261 - Certain family intervention tenancies: termination

751.     This clause makes provision in relation to the termination of local housing authority family intervention tenancies.

752.     Subsection (1) provides that a local authority should not serve a notice to quit on a tenant of a family intervention tenancy unless a notice under subsection (2) has been served on the tenant and either:

  • the tenant has not requested a review specified in subsection (2)(e) (right to request a review of decision to evict within 14 days of the date when the notice of intention to evict is served on the tenant);

  • the tenant withdraws the request for a review; or

  • a notice under subsection (4)(b) has been served on the tenant (notice of the reasoning and decision of the requested review).

753.     Subsection (2) sets out the required contents of the notice.

754.     Subsections (3)-(4) explain what a local authority must do if a tenant requests a review of the local authority's decision within 14 days of the service of the notice under subsection (2). The local authority must carry out the review and serve notice of their decision and the reasons for it on the tenant.

755.     Subsection (5) provides that an "appropriate authority" (Secretary of State for England or the Welsh Ministers for Wales) may make regulations about the review procedure.

756.     Subsection (6) provides that regulations made under subsection (5) may contain:

  • a description of the person who makes the review decision;

  • the circumstances under which the tenant would be entitled to an oral review;

  • whether or not and by whom the tenant can be represented during the review hearing.

757.     Subsection (7) provides that any notice to quit or notice under subsection (2) served in respect of a family intervention tenancy, must also contain advice to the tenant about obtaining assistance in relation to the notice.

758.     Subsection (8) provides that an "appropriate authority" (Secretary of State for England or the Welsh Ministers for Wales) may make regulations on the type of advice the notice to quit or notice under subsection (2) must include.

759.     Subsection (10) effectively applies the provisions of this clause only to tenancies granted after the coming into force of this section.

Right to buy etc: miscellaneous

Clause 262 - Exception to the right to buy: possession orders

760.     Clause 262 clarifies the circumstances where section 121(1) of the Housing Act 1985 applies so that a tenant subject to a possession order cannot exercise the Right to Buy, ensuring that these include a possession order which does not initially specify a date for possession.

Clause 263 - Review of determination of value

761.     Section 128 of the Housing Act 1985 ("the Act") provides that where a tenant who has applied for the Right to Buy is dissatisfied with the valuation provided by his landlord under section 125 of the Act, he may ask the District Valuer (an officer of the Valuation Office Agency, a non-profit-making public body) for a determination of value. Clause 263 inserts new sections 128A and 128B into the Act to enable a District Valuer, either at the request of the landlord or the tenant or on his own initiative, to withdraw and replace a determination of value which he subsequently finds has been based on faulty facts. A request or decision to review the original determination must be made within specified time limits.

Clause 264 - Approved lending institutions

762.     If a tenant buys his home under the Right to Buy and then resells it within five years, his former landlord may require him to repay some or all the discount he received. This obligation is secured by a charge on the property. However, if the owner has a mortgage and is unable to keep up the payments on it, lenders specified in section 156 of the Housing Act 1985 or approved by the Secretary of State under that section ("approved lending institutions") are entitled to recover what they are owed (by taking possession and selling the property) ahead of the landlord's entitlement - i.e. they have a 'first charge' on the property. Clause 264 removes the Secretary of State's powers under section 156 to specify bodies as approved lending institutions and to revoke that status. The clause instead adds to the list in section 156(4) of automatically approved lending institutions (i) bodies which are authorised by the Financial Services Authority (FSA) and (ii) European lenders automatically entitled to operate in the United Kingdom. The clause also makes consequential amendments to the relevant definitions in section 622 of the Housing Act 1985. The overall effect is to combine the process of approving lenders for Right to Buy purposes, now carried out by the Secretary of State, with the process of authorising lenders carried out by the FSA.

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Prepared: 16 November 2007