Office of Public Sector Information
182.Subsection (12) provides that this will include compliance with the regulators’ Compliance Code issued under the provisions of the Legislative and Regulatory Reform Act 2006.
183.Subsection (13) indicates that there is no significance to the order in which the objectives are listed in the section. It is for the regulator to balance these objectives in carrying out each of its functions as it deems appropriate.
184.Section 87 provides for the regulator to determine its own procedure and for the manner in which its procedure is made public. Section 88 states that this procedure must include arrangements for dealing with conflicts of interest of members, employees or members of committees and sub-committees.
185.Sections 89 and 90 enable the regulator to authorise a committee, a sub-committee, a member or an employee to exercise a function on its behalf. All committees or sub-committees will need to include at least one member of the regulator (but may also include non-members).
186.This section provides that a document executed under the seal is to be regarded as valid unless the contrary is shown, and that the seal may be authenticated by any person authorised to so do or by a member.
187.This section requires the regulator to prepare and publish an annual report, as soon as is reasonably practicable after the end of each financial year. The contents must be a report on the performance of its functions during the preceding financial year. In particular, it will include a statement of the regulator’s accounts, and specify any direction that the regulator has been given by the Secretary of State during the preceding year under section 197. The regulator’s annual report shall include a general description of complaints made to it during the year about the performance of registered providers and of how those complaints have been dealt with. Having prepared the report, the regulator will send a copy of the report to the Secretary of State, who will then lay a copy before Parliament.
188.This section gives the regulator power to do anything it thinks necessary or expedient for the purpose of, or in connection with, the performance of a function conferred on it by this Part, or another enactment. In particular the regulator may do anything it thinks appropriate for advancing its fundamental objectives.
189.This section gives the regulator a power to commission studies or to carry them out itself with the objective of improving the economy, efficiency and effectiveness of registered providers. Where the regulator carries out or commissions such studies, it may publish a report.
190.This section gives the regulator a power to give financial assistance in certain circumstances.
191.Subsection (1) gives the regulator power to give financial assistance in connection with research, guidance, best practice and tenant involvement.
192.Subsection (2) sets out a range of means by which the regulator may give financial assistance, including grant, loan, or the defraying of expenditure on behalf of a person. Subsection (2)(d)notes that the regulator may also give financial assistance in any other way, with the specified exceptions of purchasing loan or share capital of a body corporate or the giving of a guarantee or indemnity.
193.Subsection (3) gives the regulator a separate power to give financial assistance to a registered provider by lending money or giving a guarantee or indemnity. Such assistance may only be given with the consent of the Secretary of State (subsection (4)) given with the approval of the Treasury.
194.This section provides that the regulator may, in considering whether to exercise a power, have regard to information from any source including, in particular, from tenants, bodies representing tenants, local housing authorities, or an ombudsman.
195.This section enables the regulator to publish ideas or information; to undertake research in relation to social housing; and to provide guidance, advice, education or training.
196.Subsection (2) enables the regulator to arrange for someone else to carry out all these activities on its behalf, and also joint working with other persons engaged in the work set out in subsection (1).
197.Subsection (3) specifies that advice may be given to unregistered and prospective housing associations. This provision broadly replicates the effect of section 77 of the Housing Associations Act 1985.
198.Section 98 requires the regulator to promote awareness of its functions among tenants of social housing, where appropriate consult tenants about the exercise of its functions, and where appropriate involve them in the exercise of its functions. It also requires the regulator to publish from time to time a statement about how it will meet this duty, following consultation.
199.This section provides for the regulator to make payments to appointed members and employees. Subsection (1) enables the regulator to pay remuneration, allowances, pensions and gratuities to its members although subsection (2) makes clear that rates and eligibility will be determined by the Secretary of State. Subsection (3) provides, if the Secretary of State considers there are special circumstances, for the regulator to make compensation payments to a person who ceases to be an appointed member.
200.Subsection (4) gives the regulator the power to pay its employees remuneration, allowances, pensions and gratuities.
201.This section allows the regulator to charge for giving advice, conducting research or providing other services. This broadly replicates the effect of section 77 of the Housing Associations Act 1985.
202.This section enables the Secretary of State to make payments to the regulator by way of grant or loan, and for those payments to be subject to conditions.
203.This section specifies that the regulator may borrow by way of an overdraft or otherwise, for the short-term management of its finances; or from the Secretary of State. It may not borrow otherwise.
204.This broadly replicates the effect of section 92 of the Housing Associations Act 1985. Those powers will not be needed by the regulator as it will not be investing in affordable housing.
205.Section 103 sets out provisions for ensuring that the regulator maintains and publishes its accounts, the form of which will be directed by the Secretary of State. These accounts are to be sent to the Secretary of State, and to the Comptroller and Auditor General. Section 104 defines the regulator’s financial year.
206.Subsection (1) requires the regulator to co-operate with the HCA.
207.Subsection (2) requires the regulator to consult the HCA on matters likely to interest it. This mirrors a parallel provision at section 37, requiring the HCA to co-operate with the regulator, and to consult the regulator on matters likely to interest it.
208.This section gives the regulator a power to direct the HCA not to give financial assistance to a specified registered provider. The regulator’s direction may only be made in respect of the HCA’s power to give financial assistance under section 19 in connection with social housing.
209.The purpose of this power is to prevent financial assistance from being given to a registered provider where there are serious concerns about mismanagement or about the viability of the organisation. This power may be used in the most serious interventions by the regulator, as described in subsection (2):
the regulator has decided to hold an inquiry into affairs of the registered provider under section 206 (and the inquiry is not concluded),
the regulator has received notice in respect of the registered provider under section 145 (moratorium), or
the regulator has appointed an officer of the registered provider under section 269 (and the person appointed has not vacated office).
210.Subsection (3) states that a direction may prohibit the HCA from giving assistance of a specified kind (whether or not in pursuance of a decision already taken and communicated to the registered provider). This means that the regulator could prohibit some forms of financial assistance while allowing others. It also means that the regulator could prohibit financial assistance even where, for example, a funding agreement is already in place.
211.Subsection (4) prevents the regulator from issuing a direction prohibiting grant to a registered provider where that grant is to be given in respect of discounts given by the provider on disposals of dwellings to tenants. This ensures that the regulator’s powers do not interfere with the HCA’s statutory duty to pay grants under section 35 (duty to give financial assistance in connection with certain disposals).
212.Subsection (5) states that a direction shall have effect until withdrawn.
213.Section 107 gives the regulator, for purposes connected with its functions, the power to require documents or information from any person it believes may possess them, concerning the financial or other affairs of registered providers or the activities or proposed activities of a registered provider or a person who has applied to become a registered provider.
214.The regulator is likely to use this power to follow up concerns raised by tenants, local authorities or others by asking for specific information from the provider in addition to standard performance information obtained under section 204. The regulator may ask for the same types of information from profit-making registered providers as from non-profit providers.
215.Subsection (2) provides that a requirement may not be imposed on a person other than the body to which the document or information relates, unless the body has been required to provide the document or information but failed to do so; or the regulator thinks the body is unable to provide it.
216.Subsection (3) provides that the regulator may specify the form and manner in which it is to be provided and when and where it is to be provided.
217.Subsection (4) permits the regulator to copy or record the documents or information required by it under this section.
218.Subsection (5) specifies that it is an offence to fail to comply with a request without a reasonable excuse. Subsection (3) of section 108 provides that a person guilty of this offence is liable on summary conviction to a fine up to level 5 (currently £5000) on the standard scale.
219.Subsection (6) further specifies that it will also be an offence intentionally to alter, suppress or destroy information or documents to which a request for information relates. Subsection (4)of section 108 provides that a person guilty of this offence is liable either on summary conviction to a fine up to the statutory maximum (currently £5000), or on conviction on indictment to imprisonment for a term of no more than 2 years, or a fine, or both.
220.Subsection (7) provides that if a person who has been required to provide information by the regulator under this power fails to comply, then the regulator may apply to the High Court for an order to remedy that person’s failure to provide the information required. Subsection (6) of section 108 provides that such an order may include a provision for costs.
221.Subsection (1) of section 108 limits the power to require information in section 107 such that the regulator cannot require a person to disclose anything that they would be entitled to refuse to disclose in High Court proceedings on the grounds of legal professional privilege.
222.Similarly subsection (2) specifies that a requirement for information does not require a banker to breach a duty of confidentiality owed to a person who is not the registered provider to whose affairs or activities the documents or information relates or the subsidiary or associate of that registered provider.
223.Subsection (5) provides that prosecutions may only be brought by or with the consent of the regulator or the Director of Public Prosecutions.
224.Subsection (1) provides that a public authority may disclose information to the regulator provided that the authority thinks the disclosure is necessary for a purpose connected with the regulator’s functions. Subsection (8) defines a “public authority” as a person with functions of a public nature, without restriction as to the location where those functions are carried out.
225.Subsection (2) provides for the regulator to disclose information to a public authority (as defined in subsection (8)) if the regulator thinks the disclosure is necessary for any purpose that is either connected with the regulator’s own function, or with the functions of the public authority to which the information is disclosed.
226.Subsection (3) provides that the regulator may disclose information to a person acting on its behalf (but who is not a public authority) for a purpose connected with the regulator’s functions, for example an appointed auditor.
227.Subsections (4), (6) and (7) provide that such disclosures may be subject to restrictions on further disclosure and that any disclosure in contravention of such a restriction is an offence. A person who is guilty of this offence will be liable on conviction to a fine not exceeding level 3 (currently £1000) on the standard scale.
228.Subsection (5) means that a public authority or the regulator will not be able to disclose information under this section if doing so would breach a statutory prohibition on disclosure imposed by other legislation.
229.This section describes the purpose of this Chapter which is to establish a register of providers of social housing.
230.Subsection (1) of section 111 requires the regulator to keep a register of persons providing social housing. Only those persons on the register will be subject to regulation by the social housing regulator. This broadly replicates the effect of section 1 of the 1996 Act.
231.Subsection (2) of section 111 requires the regulator to make the register publicly available. This broadly replicates the effect of the more restrictive provision in section 1(1) of the 1996 Act which requires that the register is made available at reasonable times at the Housing Corporation’s head office.
232.Subsection (1)of section 112 indicates that an English body is eligible for registration if it satisfies the conditions of this section, and does not fall within the exceptions specified in section 113. “English body” is defined in section 79.
233.This section removes the restrictions that applied under section 2 of the 1996 Act on the constitutional form and objectives of RSLs in England, but which continue to apply in respect of Welsh bodies.
234.Registration is not compulsory for persons that provide social housing as defined by section 68. However, grant funding might, for example, be conditional on being registered.
235.Subsection (2) requires that a body must be a provider of social housing in England, or intend to become one as a condition of registration.
236.Subsection (3) requires that the body must satisfy any relevant criteria that have been set by the regulator in respect of:
its financial situation
its constitution, and
other arrangements for its management.
237.Subsection (4) requires that before the regulator sets any criteria for eligibility for registration, the regulator must consult:
the HCA
one or more bodies representative of the interests of registered providers, and
one or more bodies representative of the interests of tenants.
238.This section sets out the exceptions to section 112(1).
239.Subsection (2) specifies that local housing authorities, as defined in section 1 of the Housing Act 1985, are not eligible for registration.
240.Subsection (3) specifies that county councils are not eligible for registration.
241.Subsection (4) specifies that a person controlled by an authority that is within subsections (2) or (3) is not eligible for registration.
242.Subsection (5) gives the Secretary of State the power to make regulations defining when a person is controlled by an authority for the purposes of subsection (4).
243.Subsection (6) provides that the definition of person controlled by a local authority may be expressed by reference to a document identified in regulations under section 21(2)(b) of the Local Government Act 2003.
244.This section allows the Secretary of State to make an order, under the affirmative resolution procedure, to amend or modify as necessary or desirable Part 2 of the Act or other legislation so as to enable the regulator to regulate local authorities. It also allows such an order to require the regulator to register a specific local authority or specific class of local authority. The section requires that before making an order the Secretary of State must consult an authority or person likely to be affected by it and such other persons as the Secretary of State thinks fit.
245.Subsection (1) of this section provides that the register kept under section 111 must designate each registered person as either a non-profit organisation or a profit-making organisation. The restriction in section 2(2) of the 1996 Act that requires RSLs to be non-profit making is not replicated.
246.Subsections (2) to (6) define a non-profit organisation.
247.Subsection (2) specifies a registered or non-registrable charity as a non-profit organisation.
248.Subsection (3) specifies that a body is also a non-profit organisation if it meets the conditions specified in subsections (4) to (6). These conditions are-
that it does not trade for profit or that its constitution prohibits it from issuing capital with interest or dividend in excess of the specified rate (this condition
replicates the definition of non-profit organisation in section 2(3) of the 1996 Act); and
a purpose of the body is the provision or management of housing; and
any other purposes of the body are connected with or incidental to the provision of housing.
249.Subsection (7) gives the Secretary of State the power to make regulations providing that a specified purpose is, or is not, connected with or incidental to the provision of housing.
250.Subsection (8) defines a profit-making organisation as any organisation which is not a non-profit organisation.
251.These definitions are the basis on which the regulator will make the designation in the register provided for in subsection (1).
252.Subsection (9) requires the regulator to change the designation in the register where a profit-making organisation becomes a non-profit organisation as defined in this section.
253.Subsection (1) of this section provides that the regulator shall register any person who is eligible for registration as defined in section 112 and who applies to the regulator to be registered.
254.Subsection (2) gives the regulator the power to specify how an application should be made, including the form it should take, what information it should contain, and how it should be submitted. The regulator can also specify what will happen if an applicant for registration fails to comply with the regulator’s requirements under this subsection.
255.Subsection (3) specifies that this section is subject to section 117 (fees).
256.Subsection (4) provides that once a body has been registered, it will remain registered unless and until it is removed under the provisions of section 118 or 119.
257.Subsection (5) specifies that a person entered in the register is to be presumed for all purposes to be eligible for registration while they remain on the register, regardless of whether or not they are later removed from the register, and the reason for that removal.
258.The regulator may make the initial registration under section 116 conditional on payment of a fee, and may make continued registration conditional upon payment of an annual fee.
259.Subsection (3) gives the regulator the power to set the amount of the fee to be charged under this section, and to make provisions for the arrangements for annual fees, both when they are paid, and in respect of which period.
260.Subsection (4) gives the regulator the power to set fees on a differential basis according to different cases or circumstances. For example, the regulator may, if it chooses, set a variable fee scale according to the number of homes owned, or relate it to the amount of income a provider receives in an annual period.
261.Subsection (5) provides that fees will be set in accordance with principles which aim to ensure that so far as is reasonably practicable:
aggregate fee income the regulator receives matches the amount of expenditure it incurs in performing its functions,
each fee is reasonable and proportionate to the costs to which it relates, and
actual or potential registered providers can see the relationship between the amount of a fee and the costs to which it relates.
262.Subsection (6) specifies that the principles under subsection (5) for setting fees:
shall provide for section 95(3) (the regulator’s power to give financial assistance to a registered provider by lending money or giving a guarantee or indemnity with the consent of the Secretary of State) to be disregarded for the purpose of subsection (5)(a),
may provide for specified or potential expenditure under the remainder of section 95 (financial assistance) to be disregarded.
263.Subsection (7)specifies that the principles do not have effect until they are approved by the Secretary of State.
264.Subsection (8) requires that in preparing or revising principles, the regulator shall consult persons appearing to it to represent the interest of fee payers.
265.Subsection (9) specifies that the regulator’s accounts shall show both fees received and fees outstanding.
266.Subsection (1) gives the regulator the power to remove a body from the register, if it thinks that the body-
is no longer eligible (as provided for in sections 112 and 113)
has ceased to carry out activities, or
has ceased to exist.
267.Subsection (2) requires the regulator in the cases of subsection (1)(a) or (b) to take all reasonable steps to give the body it proposes to de-register 14 days’ notice of its action, and to consider any representations that the body may make during that period.
268.Subsection (3) requires the regulator to take all reasonable steps to inform a body that it has been deregistered on the grounds that it is no longer eligible for registration or has ceased to carry out activities. This will ensure that the body knows it no longer has to comply with regulation, though will still be required by section 172 to seek disposal consent (see section 186).
269.Subsection (1) allows registered providers to ask the regulator to remove them from the register.
270.Subsection (2) gives the regulator the power to comply with a request under subsection (1) where one or more of the specified conditions applies as follows:
the registered provider no longer is, or does not intend to continue to be, a provider of social housing in England
the registered provider is subject to regulation by another authority whose control the regulator believes to be sufficient, or
in accordance with such other criteria as the regulator has published in respect of de-registration, in accordance with subsection (7).
271.Subsection (3) requires the regulator to consult relevant local authorities (as defined in the Housing Associations Act 1985) in whose area the registered provider carries out its activities as it considers appropriate, before deciding whether or not to comply with a request under subsection (1).
272.Subsection (4) provides that the regulator may not consent to a de-registration application from a non-profit registered provider if it considers it is sought with a view to enabling the body to distribute assets to its members.
273.Subsection (5) requires the regulator, when considering whether to grant a request to de-register by a registered provider (profit-making or non-profit), to have particular regard to any conditions the regulator has placed on disposals of land (for example relating to the use of disposal proceeds) and any conditions of grant.
274.Subsection (6) provides that the regulator must notify the registered provider, and any local authority consulted, of its decision.
275.Subsection (7) provides that the regulator must publish criteria on the additional grounds that a registered provider may de-register.
276.This section requires the regulator to take certain actions as soon as reasonably possible after it has registered or deregistered a body. These actions are to notify other registrars who have related duties or powers depending on the constitutional form of the body that the regulator has registered or de-registered. Therefore, the regulator notifies:
the Charity Commission, if the registered provider is a registered charity,
the Financial Services Authority, if the registered provider is an industrial and provident society,
the registrar of companies for England and Wales, if the registered provider is a registered company.
277.Subsection (2) provides that in notifying these bodies, the regulator will advise whether the body has been registered with a profit-making or non-profit designation under section 115(1).
278.Subsection (3) provides that if the regulator changes the designation under section 115(9), the regulator will also advise the relevant bodies.
279.Subsection (4) provides that a person to whom notice is given by the regulator under this section must keep a record of that notice.
280.Subsection (1) gives a body the right of appeal to the High Court against a decision of the regulator:
to refuse to register that body
to deregister that body
to refuse to deregister that body.
281.Subsection (2) prohibits the regulator from de-registering a body while an appeal to the High Court is pending.
282.Subsection (3) permits the Secretary of State to provide by order for any appeals to be heard by the First-tier tribunal instead of the High Court. This covers appeals against a decision by the regulator to refuse to register a body, to de-register a body, or to refuse to de-register a body.
283.This section derives from paragraph 1 of Part 1 of Schedule 1 to the 1996 Act.
284.Subsection (1) restricts the making of gifts and the payment of dividends and bonuses by a non-profit registered provider to –
a member or former member of the registered provider,
a member of the family of a member or former member,
a company which has as a director such a person.
285.Subsection (2) states that gifts may only be made, or dividends of bonuses paid if they fall within the three classes defined in subsections (3) to (5).
286.Subsections (3) to (5) broadly replicate the effects of paragraphs 1(2)(a) to (c) of the Part mentioned above.
287.Subsection (6) states that if a registered company or industrial and provident society contravenes this section –
it may recover the wrongful gift or payment as a debt from the recipient; and
the regulator may require it to take action to recover the gift or payment.
288.This section cross-refers to the provisions in Chapter 5 (disposal of property).
289.Section 124 amends section 51 of, and Schedule 2 to, the Housing Act 1996 (schemes for investigation of complaints by housing ombudsman). This ensures that the former registered providers of social housing, and bodies formerly registered with the Housing Corporation, are only required to remain members of a housing ombudsman scheme while they continue to own publicly-funded dwellings.
290.This section sets out the nature of voluntary undertakings made to the regulator by registered providers.
291.Subsection (1) provides that a registered provider may give an undertaking in respect of any matter concerning social housing.
292.Subsection (2) provides that the regulator may prescribe a procedure to be followed in giving an undertaking.
293.Subsections (3) and (4) provide that the regulator must have regard to any undertaking made in this way by a registered provider when exercising a power under Chapters 6 or 7 of this Part of the Act. The regulator may also take into account the extent to which undertakings having been made in this way by a registered provider, have been honoured by the provider, when deciding whether to exercise powers under Chapters 6 or 7.
294.One of the purposes of this provision is to enable registered providers to formally notify the regulator of actions that they propose to take, and believe are necessary to ensure that their affairs are managed in accordance with the standards set by the regulator under sections 193 and 194. It provides a mechanism by which such commitments can be brought to the attention of the regulator, and require the regulator to take account of those undertakings when determining whether to investigate the performance of providers, and to take enforcement action where providers have not complied with regulatory requirements.
295.This section specifies that a registered provider must co-operate with a local authority if invited to participate in the preparation or modification of a sustainable community strategy under section 4 of the Local Government Act 2000.
296.Sections 127 to 143 broadly replicate the effect of Part 3 of Schedule 1 to the 1996 Act.
297.Subsections (1), (2)and (3) give the regulator the power to give directions to registered providers about the preparation of accounts for the purpose of ensuring that accounts are prepared in a proper form and that they present a true and fair view of a registered provider’s state of affairs as far as it concerns social housing, including its present and past social housing assets and funds. This broadly replicates the effect of paragraph 16(1) of Schedule 1 to the 1996 Act. A direction may be given to a profit-making registered provider only in so far as its accounts relate to social housing activities.
Housing and Regeneration Act 2008