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Miscellaneous

Clause 184 - Unregistered housing associations

524.     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. In addition, the regulator takes on the Secretary of State's functions in relation to the disposal of housing obtained from new town corporations.

Clause 185 - Former registered providers

525.     This clause ensures that clauses 170 to 174 (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 1996 Act.

Clause 186 - Trustees

526.     This clause replaces the first sentence of section 8(2) of the 1996 Act.

Clause 187 - Charities

527.     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.

Consents under other legislation

Clause 188 - Consent to disposals under other legislation

528.     Under section 171D of the Housing Act 1985, sections 81 and 133 of the Housing Act 1988 and section 173 of the Local Government and Housing Act 1989 a registered provider must obtain the consent of the Secretary of State before disposing of dwellings in relation to which a tenant has a Preserved Right to Buy (section 171D of the Housing Act 1985) or on the first onward disposal of dwellings acquired through transfer from a housing action trust, a local authority or a new town corporation. This clause provides that the functions of the Secretary of State in considering such consents are transferred to the Regulator.

Clause 189 - Section 188: consequential amendments

529.     This clause makes amendments to the Housing Act 1985, the Housing Act 1988 and Local Government and Housing Act 1989 which are consequential on clause 188.

530.     Subsection (1) amends section 171D of the Housing Act 1985 to replace references to "Secretary of State" with "appropriate authority", which in relation to a disposal in England by a registered provider means the Regulator of Social Housing, in relation to any other disposal in England means the Secretary of State, and in relation to any such disposal in Wales means the Welsh Minsters.

531.     Subsections (2), (3) and (4) make similar amendments to section 81 of the Housing Act 1988, section 133 of the Housing Act 1988 and section 173 of the Local Government and Housing Act 1989 respectively.

Chapter 6 - Regulatory powers

Clause 190 - Overview

532.     Clause 190 describes the contents of Chapter 6.

Standards

Clause 191 - Provision of social housing

533.     Subsection (1) of clause 191 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, extent and quality of accommodation, facilities and services provided by them in connection with social housing.

534.     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 (j) of subsection (2) as follows:

    a)     criteria for allocating accommodation,

    b)     terms of tenancies,

    c)     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),

    d)     maintenance and repair,

    e)     procedures for addressing complaints by tenants against landlords,

    f)     methods for consulting and informing tenants,

    g)     methods of enabling tenants to influence or control the management of their accommodation and environment,

    h)     policies and procedures required by section 218A of the 1996 Act in connection with anti-social behaviour,

    i)     landlords' contribution to the environmental, social and economic well-being of the areas in which their property is situated, and

    j)     estate management.

535.     Subsection (3) provides that in setting standards, the regulator must have regard to the desirability of registered providers being free to choose how to provide services and conduct business.

Clause 192 - Management

536.     This clause gives the regulator the power to set standards that relate to the financial viability and management of the organisation, and other affairs. Subsection (2) provides that these powers also extend to profit-making providers, although only in relation to their provision of social housing. Subsection (3) provides that in setting standards, the regulator must have regard to the desirability of registered providers being free to choose how to provide services and conduct business.

Clause 193 - Code of Practice

537.     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 191 and 192.

538.     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 191 and 192.

539.     Subsection (3) of this clause gives the regulator the power to revise or withdraw a code of practice issued under subsection (1).

540.     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 194 - Consultation

541.     Subsection (1) provides that the regulator, before it sets standards, or issues, revises or withdraws a code of practice, must consult bodies representative of registered providers, and the tenants of registered providers, and the secured creditors of registered provider, the HCA and the Secretary of State, or ensure that they have been consulted.

542.     Subsection (2) requires that before setting a standard which would apply, or before issuing, revising or withdrawing a code of practice which applies or would apply to charities, the regulator must consult the Charity Commission.

Clause 195 - Direction by Secretary of State

543.     Subsection (1) gives the Secretary of State power to direct the regulator to set a standard under clause 191 or about the content of a standard under that clause, or for the regulator to have regard to specified objectives when setting a standard under clauses 191 or 192.

544.     Subsection (2) gives the Secretary of State the power to give a direction under subsection (1)(a) or (b) only if it relates in the Secretary of State's opinion to one of three issues: the quality of accommodation, rent, or involvement by tenants in the management by registered providers of accommodation.

545.     Subsection (3) requires the Secretary of State to have particular regard to the regulator's objectives in deciding whether to give a direction.

546.     Subsection (4) 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.

547.     Subsection (5) requires that before giving a direction about a standard which would apply to charities, the regulator must consult the Charity Commission.

548.     Subsection (6) allows a direction to disapply the requirement for the regulator to consult under section 194 in relation to specified matters.

549.     Subsection (7) provides that the regulator must comply with any direction given and subsection (8) requires that the Secretary of State publish each proposed direction for consultation; each response to a consultation; and each direction.

Clause 196 - Supplemental

550.     Subsection (1) specifies that failure to meet standards set under clauses 191 or 192 will be grounds for exercising the powers of the regulator to intervene and enforce compliance as set out in Chapter 7.

551.     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.

552.     Subsection (3) of this clause gives the regulator the power to revise or withdraw standards that have been previously set under powers in clauses 191 and 192. If this power is exercised by the regulator, the same requirements for consultation that are set out in clause 194 will apply as when standards are originally set.

553.     Subsection (4) makes clear that standards may be expressed by reference to documents prepared by others. This recognises that other bodies, or stakeholders acting as a group, may propose and consult on documents, which the Regulator may then approve and issue.

554.      Subsection (5) of this clause provides that standards set by the regulator under clauses 191 and 192 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 197 - Survey

555.     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 191 or 192 of this Part.

556.     Subsection (2) gives the regulator the power to arrange for the survey of the condition of identified homes by a person authorised by it.

557.     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.

558.     Subsection (4) provides that the authorised person may enter the premises at any reasonable time to carry out the survey.

559.     Subsection (5) specifies that the authorised person must give the registered provider a minimum of 28 days' notice of the survey.

560.     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.

561.     Subsection (7) requires the authorised person to provide a written report of their survey.

562.     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 198 - Survey: supplemental

563.     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, provide to that person a copy of the authorisation to carry out the survey.

564.     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.

565.     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 197 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 197 also commits an offence.

566.     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.

567.     Subsection (6) provides that proceedings for an offence under this section may only be brought by or with the consent of either the regulator or the Director of Public Prosecutions. This replicates the provisions of the 1996 Act.

Clause 199 - Inspection

568.     This clause provides for the regulator to appoint inspectors to inspect registered providers to ascertain their performance in respect of standards of social housing provision, or their financial and other affairs.

569.     Subsection (2) explains that the appointed inspector may be one or more members of the regulator's staff or other persons, with written authorisation to conduct that inspection.

570.     Subsection (3) requires the inspector to produce a written report after the inspection has been completed.

571.     Subsection (4) requires the regulator to provide a copy of that report to the registered provider, and to the regulator may publish the report and related information. Subsection (5) provides that such an inspection may either be general or specific.

572.     Subsection (6) provides that the Secretary of State may by order authorise the regulator to charge fees for inspections carried out under this clause. Subsection (7) requires a registered provider to pay any fee charged for inspection. Subsection (8) provides that the Secretary of State must consult with the regulator, bodies representative of registered providers, the Audit Commission and appropriate others, before making an order under subsection (6). Subsection (9) 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 200 - Inspector's powers

573.     This clause provides that an inspector appointed under clause 199 may require any person to provide him with documents or information relating to the financial affairs and activities of a registered provider. It allows the inspector to require access to the registered provider's premises and be afforded facilities in which to carry out an inspection.

Clause 201 - Performance information

574.     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 191 and 192, and to send that report to the regulator within a specified period.

575.     The regulator can specify in detail what the reports prepared by registered providers must cover.

576.     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. 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.

Clause 202 - Publication of performance information

577.     This clause requires the regulator to publish at least once a year information about the performance of registered providers including information likely to be useful to tenants, potential tenants and local authorities.

Clause 203 - Inquiry

578.     This clause gives the regulator the power to hold an inquiry if it believes that a registered provider may have mismanaged its affairs. "Mismanagement" is defined in clause 274.

579.     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 neither they, nor members of their family, are members or employees of the regulator now, or at any point within the previous five years.

Clause 204 - Inquiry: supplemental

580.     The individuals appointed by the regulator to conduct the inquiry will determine the procedure for the inquiry.

581.     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 270.

582.     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 arrange for the publication of all or part of either interim reports or the final report produced by the inquirers.

583.     Subsection (6) also provides that local authorities may contribute to the costs of an inquiry held by the regulator under these clauses.

Clause 205 - Inquiry: evidence

584.     Subsection (1) gives the inquirer the power, by giving a notice, to require persons to provide specified documents and information.

585.     Subsection (2) explains that the notice may require evidence to be given on oath (and the inquirer may administer oaths for that purpose).

586.     Subsection (3) limits the power in subsection (1) so that it can only be exercised over documents or information that the regulator would have a power over under clause 108.

587.     Subsection (4) specifies that the provisions of clause 108 (3) to (7), and clause 109 apply to this clause modified as necessary to the specific purpose of the clause.

Clause 206 - Inquiry: charities

588.     This clause provides that an inquiry can only be held in relation to a registered charity if it has received 'public assistance', may only relate to its housing activities, and that the Charity Commission must be notified of the inquiry.

Clause 207 - Extraordinary audit

589.     This clause replaces paragraph 22 of Schedule 1 to the 1996 Act.

590.     Subsection (1) specifies that where the regulator has decided to hold an inquiry under clause 203, 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.

591.     Subsection (2) defines "qualified auditor" for the purposes of this clause.

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

592.     Subsection (4) limits the use of inquiries in respect of registered providers which are also registered charities. This is equivalent to paragraph 28 of Schedule 1 to the 1996 Act. This ensures the independence of charities while respecting the Charity Commission's own role as regulator of charities in their non-housing activities.

593.     Subsection (5) specifies that the cost of the audit, including the auditor's remuneration, will be met by the registered provider.

Management and constitution

Clauses 208 - 211

594.     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.

Clause 208 - Non-profit providers only

595.     This clause restricts the application of clauses 208 to 211 to non-profit registered providers as provided for by the regulator's designation on the register under clause 115.

Clause 209 - Industrial and provident society: change of rules

596.     This clause applies only to industrial and provident societies. Subsection (2) provides that an amendment of the society's rules requires consent if it alters the society's objects, provides about the distribution of assets to members, or enables the society to become, or cease to be, a subsidiary or associate of another body.

597.     Subsection (3) provides that an amendment which requires consent is effective only if the regulator has first given consent in writing. Subsection (4) provides that the regulator may not consent to an amendment which it thinks would turn the society into a profit making organisation. Subsection (5) provides that a society must notify the regulator of any amendment which does not require consent.

598.     Subsection (6) provides that, in relation to an amendment which requires consent, the requirement to send copies of amendments of rules to the Financial Services Authority under section 10(1) of the Industrial and Provident Societies Act 1965 is only satisfied if it is accompanied by a copy of the regulator's consent under subsection (3).

599.     Subsection (7) provides that this clause shall also be treated as if it were part of the Industrial and Provident Societies Act.

600.     Subsection (8) gives the Secretary of State power, by order, to amend the list in subsection (2).

Clause 210 - Charity: change of objects

601.     This clause re-enacts paragraph 10 of Schedule 1 to the 1996 Act and applies only to registered charities that are not registered companies.

602.     Subsection (2) provides that the Charity Commission must first consent in writing to any amendment of the charity's objects if such a change is to be effective. Subsection (3) provides that the Charity Commission must consult the regulator before giving consent under subsection (2).

Clause 211 - Companies: change of articles

603.     This clause re-enacts paragraph 11 of Schedule 1 to the 1996 Act and applies only to registered companies.

604.     Subsection (2) provides that an amendment of the company's articles of association requires consent if it alters the company's objects, provides about the distribution of assets to members, or enables the company to become or cease to be a subsidiary or associate of another body.

605.     Subsection (3) provides that an amendment of the articles of association which requires consent is effective only if the regulator has first given consent in writing.

606.     Subsection (4) provides that the company must notify the regulator of an amendment of the articles of association which does not require consent, or a change to its name or registered office.

607.     Subsection (5) prohibits the regulator from permitting changes to the constitutions of a registered provider which is a company, that would turn the registered provider into a profit-making body that could distribute significant dividends and/or profits.

608.     Subsection (6) provides that a company must notify the regulator of a change of name or registered office and of any amendment which does not require consent.

 
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Prepared: 2 April 2008