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Housing and Regeneration Bill


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

92

 

239     

Section 238: supplemental

(1)   

Before acting under section 238(2) the regulator must give the registered

provider a notice—

(a)   

specifying grounds on which action might be taken under that section,

(b)   

warning the provider that the regulator is considering action under that

5

section, and

(c)   

explaining the effect of this section.

(2)   

The provisions of section 208 apply to a notice under subsection (1) above as to

a pre-enforcement notice (with any necessary modifications).

(3)   

The regulator must send a copy of a notice under subsection (1) to—

10

(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).

(4)   

A notice under subsection (1) must—

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(a)   

refer to section 125 (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 238(2).

(5)   

Notice under subsection (1) may be combined with notice under one or more

20

of sections 207, 217, 229, 235 and 237.

(6)   

The regulator must notify the HCA of an appointment or requirement under

section 238(2).

(7)   

The regulator may require a manager to report to the regulator on the affairs

specified in the appointment or requirement under section 238(3).

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(8)   

A registered provider may appeal to the High Court against an appointment

or requirement under section 238(2).

240     

Transfer of land

(1)   

This section applies if as a result of an inquiry under section 192 or an audit

under section 196 the regulator is satisfied that—

30

(a)   

a non-profit registered provider has failed to meet a standard under

section 180 or 181,

(b)   

the affairs of a non-profit registered provider have been mismanaged

in relation to social housing, or

(c)   

a transfer of land by a non-profit registered provider would be likely to

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improve the management of the land.

(2)   

The regulator may require the non-profit registered provider to transfer

specified land—

(a)   

to the regulator, or

(b)   

to another specified registered provider.

40

(3)   

A requirement may not be imposed on a registered charity.

(4)   

A requirement may be imposed on a charity which is not registered (C1), but

only for transfer to another charity (C2) whose objects the regulator thinks are

similar to those of C1.

 
 

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

93

 

241     

Section 240: supplemental

(1)   

A transfer under section 240 shall be on terms specified in, or determined in

accordance with, the requirement.

(2)   

The price shall be not less than an amount certified by the district valuer as the

amount the property would fetch if sold by a willing seller to another non-

5

profit registered provider.

(3)   

The terms shall include provision as to the payment of any debts or liabilities

in respect of the land (whether or not secured on it).

(4)   

A requirement to transfer land may be imposed only with the Secretary of

State’s consent (both as to the transfer and the terms).

10

Restrictions on dealings

242     

Restrictions on dealings during inquiry

(1)   

The regulator may make an order under this section if—

(a)   

an inquiry under section 192 is in progress in respect of a non-profit

registered provider, and

15

(b)   

either of the following cases applies.

(2)   

Case 1 applies if the regulator has reasonable grounds for believing—

(a)   

that the registered provider has failed to meet a standard under section

180 or 181 or that its affairs have been mismanaged, and

(b)   

that the interests of tenants of the registered provider, or its assets,

20

require protection.

(3)   

Case 2 applies if as a result of an inquirer’s interim report under section 193 the

regulator is satisfied—

(a)   

that the registered provider has failed to meet a standard under section

180 or 181, or

25

(b)   

that its affairs have been mismanaged.

(4)   

The regulator may order a bank or other person who holds money or securities

on behalf of the registered provider not to part with the money or securities

without the regulator’s consent.

(5)   

The regulator may make an order restricting—

30

(a)   

the transactions that may be entered into by the registered provider, or

(b)   

the nature and amounts of payments that may be made by it.

(6)   

An order under subsection (5) may in particular provide that transactions may

not be entered into or payments made without the regulator’s consent.

(7)   

The regulator may make an order in respect of a registered provider that is a

35

registered charity only if it has received public assistance.

(8)   

An order ceases to have effect at the end of the period of 6 months beginning

with the day on which the inquirer’s final report under section 193 is made.

(9)   

But the regulator—

(a)   

may revoke the order before that time;

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(b)   

may by order extend it for a specified period of up to 6 months.

 
 

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

94

 

243     

Restrictions on dealings following inquiry

(1)   

This section applies if as a result of an inquiry under section 192 or an audit

under section 196 the regulator is satisfied that—

(a)   

a non-profit registered provider has failed to meet a standard under

section 180 or 181, or

5

(b)   

the affairs of a non-profit registered provider have been mismanaged.

(2)   

The regulator may order a bank or other person who holds money or securities

on behalf of the registered provider not to part with the money or securities

without the regulator’s consent.

(3)   

The regulator may make an order restricting—

10

(a)   

the transactions that may be entered into by the registered provider, or

(b)   

the nature and amounts of payments that may be made by it.

(4)   

An order under subsection (3) may in particular provide that transactions may

not be entered into or payments made without the regulator’s consent.

(5)   

The regulator may make an order in respect of a registered provider that is a

15

registered charity only if it has received public assistance.

(6)   

An order under this section has effect until revoked by the regulator.

244     

Restrictions on dealings: supplemental

(1)   

Before making an order under section 242 or 243 the regulator must take all

reasonable steps to give notice to—

20

(a)   

the registered provider, and

(b)   

in the case of an order under section 242(4) or 243(2), the person to

whom the order is directed.

(2)   

Contravention of an order under section 242(4) or 243(2) is an offence.

(3)   

A person guilty of an offence is liable on summary conviction to a fine not

25

exceeding level 5 on the standard scale.

(4)   

Proceedings for an offence may be brought only by or with the consent of—

(a)   

the regulator, or

(b)   

the Director of Public Prosecutions.

Suspension and removal of officers

30

245     

Suspension during inquiry

(1)   

The regulator may make an order under this section if—

(a)   

an inquiry under section 192 is in progress in respect of a non-profit

registered provider, and

(b)   

either of the following cases applies.

35

(2)   

Case 1 applies if the regulator has reasonable grounds for believing—

(a)   

that the registered provider has failed to meet a standard under section

180 or 181 or that its affairs have been mismanaged, and

(b)   

that the interests of tenants of the registered provider, or its assets,

require protection.

40

 
 

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

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(3)   

Case 2 applies if as a result of  an inquirer’s interim report under section 193

the regulator is satisfied—

(a)   

that the registered provider has failed to meet a standard under section

180 or 181, or

(b)   

that its affairs have been mismanaged.

5

(4)   

The regulator may by order suspend any officer, employee or agent of the

registered provider who it thinks has contributed to the failure or

mismanagement.

(5)   

The regulator may suspend an officer, employee or agent of a registered

charity only if the charity has received public assistance.

10

(6)   

An order ceases to have effect at the end of the period of 6 months beginning

with the day on which the inquirer’s final report under section 193 is made.

(7)   

But the regulator may revoke an order before the end of that period.

(8)   

The regulator shall notify the Charity Commission if it suspends an officer,

employee or agent of a registered charity.

15

246     

Removal or suspension following inquiry

(1)   

This section applies if as a result of an inquiry under section 192 or an audit

under section 196 the regulator is satisfied—

(a)   

that a non-profit registered provider has failed to meet a standard

under section 180 or 181, or

20

(b)   

that the affairs of a non-profit registered provider have been

mismanaged.

(2)   

The regulator may by order remove any officer, employee or agent of the

registered provider who it thinks has contributed to the failure or

mismanagement.

25

(3)   

Pending a decision whether to remove an officer, employee or agent, the

regulator may by order suspend the person for a specified period of up to 6

months.

(4)   

The regulator may remove or suspend an officer, employee or agent of a

registered charity only if the charity has received public assistance.

30

(5)   

Before making an order the regulator must take all reasonable steps to give at

least 14 days’ notice to—

(a)   

the person, and

(b)   

the registered provider.

(6)   

The regulator shall notify the Charity Commission if it removes or suspends an

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officer, employee or agent of a registered charity.

247     

Suspension under section 245 or 246: supplemental

(1)   

This section applies where the regulator suspends an officer, employee or

agent of a registered provider under section 245 or 246.

(2)   

The regulator may give directions to the registered provider about—

40

(a)   

the performance of the suspended person’s functions, and

(b)   

any other matter arising from the suspension.

 
 

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

96

 

(3)   

The regulator may appoint a person to perform the suspended person’s

functions.

248     

Disqualification of removed person

(1)   

A person is disqualified from acting as an officer of a registered provider if the

person has been removed under—

5

(a)   

section 246, or

(b)   

paragraph 24(2)(a) of Schedule 1 to the Housing Act 1996 (c. 52), section

30(1)(a) of the Housing Associations Act 1985 (c. 69) or section 20(1)(a)

of the Housing Act 1974 (c. 44) (other similar provisions).

(2)   

The regulator may waive a disqualification either generally or in relation to a

10

particular registered provider or class of registered providers.

(3)   

A waiver may be granted only on an application by the disqualified person.

(4)   

The regulator shall notify a person whose disqualification is waived.

(5)   

If a disqualified person acts as an officer of a registered provider, the person’s

acts are not invalid by reason only of the disqualification.

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249     

Register of disqualified persons

(1)   

The regulator shall maintain a register of persons disqualified under section

248.

(2)   

The register must show details of any waivers.

(3)   

The regulator shall make the register available for inspection by the public.

20

250     

Acting while disqualified: offence

(1)   

It is an offence for a person to act as an officer of a registered provider in respect

of which the person is disqualified under section 248.

(2)   

A person guilty of an offence is liable—

(a)   

on summary conviction, to imprisonment for a term not exceeding

25

12 months or a fine not exceeding the statutory maximum or both;

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

two years or a fine or both.

(3)   

Proceedings for an offence may be brought only by or with the consent of—

(a)   

the regulator, or

30

(b)   

the Director of Public Prosecutions.

(4)   

In relation to an offence committed before the commencement of section 282 of

the Criminal Justice Act 2003 (c. 44) (short sentences) the reference in

subsection (2)(a) to 12 months shall have effect as if it were a reference to 6

months.

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251     

Acting while disqualified: other consequences

(1)   

This section applies where the regulator is satisfied that a person—

(a)   

has acted as an officer of a registered provider in respect of which the

person is disqualified under section 248, and

 
 

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

97

 

(b)   

in doing so, has received payments or other benefits from the registered

provider.

(2)   

The regulator may require the person to repay the sum or, as the case may be,

a specified amount representing the whole or part of the value of the benefit.

(3)   

If a person fails to comply with a requirement the registered provider may

5

recover the sum or specified amount as a debt.

252     

Removal of officers

(1)   

The regulator may by order remove an officer of a non-profit registered

provider if a Case listed in this section applies to the officer.

(2)   

In subsection (1) “officer” means—

10

(a)   

in the case of a registered charity, a director or a trustee,

(b)   

in the case of an industrial and provident society, a committee member,

and

(c)   

in the case of a registered company (other than a registered charity), a

director.

15

(3)   

Case 1 applies to a person who has been adjudged bankrupt.

(4)   

Case 2 applies to a person who has made an arrangement with creditors.

(5)   

Case 3 applies to a person who is subject to a disqualification order or a

disqualification undertaking under the Company Directors Disqualification

Act 1986 (c. 46) or equivalent legislation in Northern Ireland.

20

(6)   

Case 4 applies to a person who is subject to an order under section 429(2) of the

Insolvency Act 1986 (c. 45) (disabilities on revocation of county court

administration order).

(7)   

Case 5 applies to a person who is disqualified under section 72 of the Charities

Act 1993 (c. 10) from being a charity trustee.

25

(8)   

Case 6 applies to a person who is incapable of acting by reason of mental

disorder.

(9)   

Case 7 applies to a person who is impeding the proper management of the

registered provider by reason of absence or failure to act.

253     

Section 252: supplemental

30

(1)   

Before making an order under section 252 in respect of an officer the regulator

must take all reasonable steps to give at least 14 days’ notice to—

(a)   

the officer, and

(b)   

the registered provider.

(2)   

An order may be made in respect of an officer of a registered charity only if the

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charity has received public assistance.

254     

Appeal against removal or suspension

A person removed or suspended under section 245, 246 or 252 may appeal to

the High Court.

 
 

 
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