|
| |
|
239 | Section 238: supplemental |
| |
(1) | Before acting under section 238(2) the regulator must give the registered |
| |
| |
(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 |
| |
(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 |
| |
(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 |
| |
| |
(4) | A notice under subsection (1) must— |
| 15 |
(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 |
| |
| |
(5) | Notice under subsection (1) may be combined with notice under one or more |
| 20 |
| |
(6) | The regulator must notify the HCA of an appointment or requirement under |
| |
| |
(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). |
| 25 |
(8) | A registered provider may appeal to the High Court against an appointment |
| |
or requirement under section 238(2). |
| |
| |
(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 |
| |
| |
(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 |
| 35 |
improve the management of the land. |
| |
(2) | The regulator may require the non-profit registered provider to transfer |
| |
| |
| |
(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 |
| |
| |
|
| |
|
| |
|
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 |
| |
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 |
| |
| 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 |
| |
(3) | Case 2 applies if as a result of an inquirer’s interim report under section 193 the |
| |
| |
(a) | that the registered provider has failed to meet a standard under section |
| |
| 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. |
| |
| |
(a) | may revoke the order before that time; |
| 40 |
(b) | may by order extend it for a specified period of up to 6 months. |
| |
|
| |
|
| |
|
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 |
| |
| 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— |
| |
| |
(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 |
| |
| |
(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, |
| |
| 40 |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| 20 |
(b) | that the affairs of a non-profit registered provider have been |
| |
| |
(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 |
| |
| 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 |
| |
| |
(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— |
| |
| |
(b) | the registered provider. |
| |
(6) | The regulator shall notify the Charity Commission if it removes or suspends an |
| 35 |
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. |
| |
|
| |
|
| |
|
(3) | The regulator may appoint a person to perform the suspended person’s |
| |
| |
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 |
| |
(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. |
| 15 |
249 | Register of disqualified persons |
| |
(1) | The regulator shall maintain a register of persons disqualified under section |
| |
| |
(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— |
| |
| 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 |
| |
| 35 |
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 |
| |
|
| |
|
| |
|
(b) | in doing so, has received payments or other benefits from the registered |
| |
| |
(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. |
| |
| |
(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, |
| |
| |
(c) | in the case of a registered company (other than a registered charity), a |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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— |
| |
| |
(b) | the registered provider. |
| |
(2) | An order may be made in respect of an officer of a registered charity only if the |
| 35 |
charity has received public assistance. |
| |
254 | Appeal against removal or suspension |
| |
| |
| |
|
| |
|