Office of Public Sector Information
the registered provider and its officers,
its secured creditors to whom the original proposals were sent,
any liquidator, administrator, administrative receiver or receiver appointed in respect of the registered provider or its land,
the Financial Services Authority, if the registered provider is an industrial and provident society,
the Charity Commission, if the registered provider is a registered charity.
423.Subsection (7) requires the regulator to make arrangements for bringing the agreed proposals to the attention of the following:
the members of the registered provider,
its tenants, and
its unsecured creditors.
424.Subsections (6) and (7) replace the provisions of section 45(4) of the 1996 Act.
425.Subsection (8) allows for the proposals to be amended by agreement between the regulator and the secured creditors to whom the original proposals were sent. Where such amendments are made and agreed, the provisions of sections 151 and 152 apply to the amended proposals as they did to the original proposals. This broadly replicates the effect of section 45(5) of the 1996 Act.
426.Subsection (1) lists those who are obliged to implement agreed proposals. This broadly replicates the effect of section 45(2) of the 1996 Act. The list is as follows:
the regulator,
the registered provider,
its creditors,
any liquidator, administrator, administrative receiver or receiver appointed in respect of the registered provider or its land.
427.Subsection (2) lists those who are obliged to co-operate with the implementation of the agreed proposals. They are the members of the governing body of the registered providers as follows:
for a registered charity, its trustees,
for an industrial and provident society, its committee members, and
for a registered company, its directors.
428.Subsection (3) provides that subsection (2) does not oblige or permit those who are expected to co-operate to breach a fiduciary duty to the registered provider or other duty.
429.Subsections (2) and (3) broadly replicate the effect of sections 45(2) and 45(3) of the 1996 Act.
430.This section broadly replicates the effect of section 46 of the 1996 Act.
431.Subsection (1) provides that this section applies where agreed proposals provide for the appointment of a manager.
432.Subsection (2) specifies that the proposals must provide for the manager to be paid reasonable remuneration and expenses.
433.Subsection (3) provides that the regulator will appoint the manager.
434.Subsection (4) provides that the regulator may give directions to the manager which may be general or specific in nature, or both.
435.Subsection (5) provides that the manager may apply to the High Court for directions, and that the directions of the regulator under subsection (4) are subject to directions of the High Court.
436.Subsection (6) provides that the regulator must notify the Charity Commission that a manager has been appointed, if the registered provider is a charity.
437.Subsection (7) provides that the regulator may appoint a new manager in place of a person who ceases to be a manager under this section for whatever reason, and that the new manager’s terms of appointment will be as specified in the proposals, or as determined by the regulator.
438.This section broadly replicates the effect of section 47 of the 1996 Act.
439.Subsection (1) expresses the manager’s general powers as follows:
the manager may do anything necessary for the purpose of the appointment,
the manager acts as the registered provider’s agent, and is not personally liable on a contract, and
the manager has ostensible authority to act for the registered provider with the effect that a person dealing with the manager in good faith and for value does not need to further inquire into the manager’s powers.
440.Subsection (2) sets out a list of the specific powers that the terms of a manager’s appointment may confer as follows:
to sell or otherwise dispose of land by public auction or private contract;
to raise or borrow money;
to grant security over land;
to grant or accept surrender of a lease;
to take a lease;
to take possession of property;
to appoint a solicitor, accountant or other professional to assist the manager;
to appoint agents and staff (and to dismiss them);
to make payments;
to bring or defend legal proceedings;
to refer a question to arbitration;
to make any arrangement or compromise;
to carry on the business of the registered provider;
to carry out works and do other things in connection with the management or transfer of land;
to take out insurance;
to use the registered body’s seal
to execute in the name and on behalf of the registered provider any deed, receipt, or other document;
to do anything incidental to a power in paragraphs (a) to (q).
441.Subsection (3) requires the manager to consult and inform the registered provider’s tenants as far as it is reasonably practicable to do so about any exercise of power that is likely to affect them.
442.This section broadly replicates the effect of section 48 of the 1996 Act.
443.Subsection (1) specifies that this section applies to a manager appointed under section 155 to implement proposals where the registered provider is an industrial and provident society.
444.Subsection (2) specifies that the appointment of the manager may include the power to make and execute on behalf of the registered provider an instrument that has the effect of transferring its engagements, or providing for its amalgamation with another industrial and provident society.
445.Subsection (3) provides that an instrument for amalgamation has the same effect as a resolution under section 50 of the Industrial and Provident Societies Act 1965.
446.Subsection (4) provides that an instrument for transferring engagements has the same effect as a transfer of engagements under sections 51 and 52 of the Industrial and Provident Societies Act 1965.
447.Subsection (5)requires a copy of the instrument to be sent to and registered by the Financial Services Authority.
448.Subsection (6) specifies that the instrument does not take effect until the copy is registered.
449.Subsection (7) specifies that the copy must be sent to the Financial Services Authority for registration within 14 days of the execution of the instrument, but that the copy registered is not invalid if it is registered after that time.
450.This section broadly replicates the effect of section 49 of the 1996 Act.
451.Subsection (1) gives the regulator the power to give financial or other assistance to a registered provider for the purpose of maintaining its position while the regulator develops proposals under section 152.
452.Subsection (2) gives the regulator the power to give financial or other assistance either to a registered provider or to a manager appointed under section 155 to assist or facilitate the implementation of proposals agreed in accordance with section 152.
453.Subsection (3) specifies that such assistance under subsections (1) and (2) may include the regulator lending staff or arranging the payment of a manager’s remuneration and expenses.
454.Subsection (4) specifies a list of things that the regulator may do by way of giving assistance that require the consent of the Secretary of State. Those things are:
making grants,
making loans,
indemnifying a manager,
making payments in connection with secured loans, and
guaranteeing payments in connection with secured loans.
455.This section broadly replicates the effect of section 50 of the 1996 Act.
456.Subsection (1) gives the registered provider the right to apply to the High Court where it thinks that an action taken by a manager appointed under section 159 is not in accordance with agreed proposals.
457.Subsection (2) gives a similar right to a creditor of a registered provider.
458.Subsection (3) provides that where an application is made to the High Court under subsection (1) or (2), the High Court can:
confirm, annul, or modify an act of the manager
give the manager directions,
make any other order.
459.Subsection (4) gives a person who is bound by agreed proposals the right to apply to the High Court if that person thinks that another person who is obliged to implement or co-operate with agreed proposals under section 154 has breached the requirements of that section.
460.Subsection (5) provides that where an application is made to the High Court under subsection (4), the High Court can:
confirm the action, modify the action or annul it,
grant relief by way of injunction, damages or otherwise.
461.These sections re-enact the powers of the Housing Corporation in paragraphs 12 to 14 of Schedule 1 to the 1996 Act as powers of the regulator. These powers relate to the restructuring and dissolution of non-profit registered providers of social housing.
462.Subsection (1) specifies that the effect of this section is restricted to non-profit registered providers that are registered companies.
463.The effect of subsections (2) to (4) is to render the arrangements under various statutory provisions ineffective without the consent of the regulator.
464.The arrangements in this section for which the regulator’s consent is required are:
voluntary arrangements made by the directors of a company with its creditors under Part 1 of the Insolvency Act 1986. (This broadly replicates the effect of section 13(5) of Schedule 1 to the 1996 Act).
an agreement or compromise with creditors that has been sanctioned by a court order in accordance with section 899 of the Companies Act 2006 (this broadly replicates the effect of paragraph 13(2) of Schedule 1 to the 1996 Act which relates to the such arrangements made under section 425 of the Companies Act 1985). Subsection (3)(b) also requires that a copy of the consent should be delivered to the registrar of companies before the court order is effective.
an agreement under section 900 of the Companies Act 2006 where the application to the court for an order sanctioning an agreement under section 899 of the Companies Act 2006 is in respect of an agreement to reconstruct a company or amalgamate two or more companies and it provides for the transfer of the whole or part of the undertaking or property of one or more of the companies involved in the scheme (this broadly replicates the effect of the first sentence of paragraph 13(3) of Schedule 1 to the 1996 Act which related to the arrangements made under section 427 of the Companies Act 1985).
465.Subsection (5) provides that a court order for the arrangements in subsection (4), and which section 900(6) of the Companies Act 2006 requires to be sent to the registrar of companies, must also be accompanied by a copy of the regulator’s consent (this broadly replicates the effect of the second sentence of paragraph 13(3) of Schedule 1 to the 1996 Act which related to the such arrangements made under section 427 of the Companies Act 1985).
466.Subsection (1) specifies that the effect of this section is restricted to non-profit registered providers that are registered companies.
467.Subsection (2) specifies that where there is a resolution to convert a company into an industrial and provident society under section 53 of the Industrial and Provident Societies Act 1965, the registrar of companies may only register that resolution if the regulator has consented in writing to the resolution and a copy of that consent accompanies the resolution sent to the registrar of companies. This broadly replicates the effect of paragraph 13(4) of Schedule 1 to the 1996 Act.
468.Subsection (3) requires that where an industrial and provident society is created by such a resolution, the regulator must register the body created and designate it as a non-profit organisation on the register.
469.Subsection (4) further provides that the effects of subsection (3) will be immediate for the purposes of the regulator’s functions and powers, pending the completion of the registration process by the regulator. This broadly replicates the effect of paragraph 13(8) of Schedule 1 to the 1996 Act.
470.Subsection (1) specifies that the effect of this section is restricted to non-profit registered providers that are companies.
471.Subsection (2) provides that the regulator must first consent in writing before a special resolution for the voluntary winding up of a company under the Insolvency Act 1986 is effective. This broadly replicates the effect of paragraph 13(6)(a) of Schedule 1 to the 1996 Act.
472.Subsection (3) provides that the requirement to send a copy of the special resolution to the registrar of companies under section 30 of the Companies Act 2006 is satisfied only if a copy of the regulator’s consent accompanies the special resolution. Failure to comply with section 30 of the Companies Act 2006 is an offence. Subsection (3) broadly replicates the effect of paragraph 13(6)(b) of Schedule 1 to the 1996 Act which referred to the earlier equivalent provision in section 380 of the Companies Act 1985.
473.Subsection (1) specifies that the effect of this section is restricted to non-profit registered providers that are industrial and provident societies.
474.Subsections (2) and (3) re-enact paragraph 12(2) of Schedule 1 to the 1996 Act.
475.Subsection (2) provides that the Financial Services Authority, which is the registrar for industrial and provident societies, may register resolutions passed by an industrial provident society for the purposes of the restructuring provisions identified in subsection (3), only if the regulator has consented in writing to the resolution, and a copy of that consent accompanies the resolution sent to the Financial Services Authority.
476.Subsection (3) identifies the restructuring provisions for industrial and provident societies for the purposes of this section as the following sections of the Industrial and Provident Societies Act 1965:
section 50 which is for the amalgamation of two or more societies,
section 51 which is for the transfer of engagements from one society to another,
section 52 which is for the conversion into, amalgamation with or transfer of engagements to, a company by an industrial and provident society.
477.Subsection (4) broadly replicates the effect of paragraph 12(3) of Schedule 1 to the 1996 Act. It provides that where a resolution is registered by the Financial Services Authority, any body that is created by the resolution, or to which there is a transfer of engagements as a result of the resolution, will be:
registered by the regulator as a registered provider, and be designated as a non-profit provider in accordance with section 115, and that
for the purposes of the regulator’s functions and powers, pending the completion of the registration process by the regulator of the new body, the new body will be treated as if it were registered already as a non-profit organisation.
478.Subsection (1) specifies that the effect of this section is restricted to non-profit registered providers that are industrial and provident societies.
479.Subsections (2) and (3) re-enact paragraph 12(4) of Schedule 1 to the 1996 Act.
480.Subsection (2) provides that the regulator must first consent before a resolution for the voluntary winding up of a society under the Insolvency Act 1986 is effective.
481.Subsection (3) refers to the requirement to send a copy of a winding up resolution to the Financial Services Authority under section 30 of the Companies Act 2006. It specifies that this requirement is only satisfied if the resolution is accompanied by a copy of the regulator’s consent. This requirement of the Companies Act 2006 is applied to industrial and provident societies by section 55 of the Industrial and Provident Societies Act 1965, and section 84(3) of the Insolvency Act 1986. Failure to comply with section 30 of the Companies Act 2006 is an offence.
482.This section broadly replicates the effect of paragraph 12(5) of Part II of Schedule 1 to the 1996 Act.
483.Subsection (1) specifies that the effect of this section is restricted to non-profit registered providers that are both industrial and provident societies and are to be dissolved by an instrument of dissolution as defined in section 58 of the Industrial and Provident Societies Act 1965.
484.Subsection (2) provides that the instrument of dissolution may only be registered by the Financial Services Authority under section 58(5) of the Industrial and Provident Societies Act 1965 or be advertised by the authority as it is required to do under section 58(6) of the same Act if the regulator has first consented in writing to the dissolution and a copy of the consent has accompanied the instrument of dissolution sent to the Financial Services Authority.
485.This section broadly replicates the effect of paragraph 14 of Schedule 1 to the 1996 Act.
486.Subsection (1) specifies that the effect of this section is restricted to non-profit registered providers that are either registered companies, or industrial and provident societies.
487.Subsection (2) provides that the regulator may present a petition for the registered provider to be wound up under the Insolvency Act 1986 on one of the grounds specified in subsections (3) to (5) which are that:
the registered provider is not carrying out the objects specified in its constitution, or
the registered provider is unable to pay its debts as that inability is defined in section 123 of the Insolvency Act 1986, or
the regulator has directed the registered provider to transfer its land to another person under the power conferred on it by section 253.
488.Subsection (1) specifies that the provisions of this section apply where a non-profit registered provider-
which is an industrial and provident society is dissolved in accordance with sections 55(a) or 55(b) of the Industrial and Provident Societies Act 1965, or
which is a registered company is wound up under the Insolvency Act 1986.
489.Subsection (2) provides that in either of the two cases in subsection (1), any surplus property remaining after the registered provider’s liabilities have been satisfied will either be transferred to the regulator, or, if the regulator directs, to another registered provider that it specifies.
490.Subsection (3) provides that that if the registered provider that has been dissolved or wound up under subsection (1) must sell any of its lands in order to satisfy its liabilities, the regulator may discharge those liabilities instead so as to ensure that the land that would otherwise have to be sold is instead transferred as provided for in subsection (2).
491.Subsection (4) provides that if the registered provider dissolved or wound up under subsection (1) is a charity, the registered provider that the regulator may specify as the recipient of surplus assets after its liabilities have been satisfied must also be a charity whose objects the regulator is satisfied are similar to those of the charity being dissolved or wound up.
492.Subsection (5) specifies that the provisions of this section override any provisions in the following legislation:
Industrial and Provident Societies Act 1965,
Insolvency Act 1986,
Companies Act 2006.
493.It also specifies that the section overrides any provisions in the constitution of the registered provider that is being dissolved or wound up.
494.Subsection (1) specifies that this section applies to property transferred to the regulator in accordance with section 167(2)(a).
495.Subsection (2) specifies that the regulator may only dispose of property transferred to it under section 167(2)(a) to another registered provider.
496.Subsection (3) applies if the registered provider dissolved or wound up under section 167(1) is a charity. It specifies that any property transferred to the regulator under section 167(2)(a) from a charity may only be disposed of to a registered provider that is both a charity and has objects that are similar to those of the charity from which the property was transferred to the regulator.
497.Subsection (4) provides that if the property transferred to the regulator from the charity wound up or dissolved under section 167(1) is subject to a mortgage or charge, the regulator may either dispose of that land subject to that mortgage or charge, or subject to a new mortgage or charge in favour of the regulator.
498.This section confers a power on the Secretary of State to provide by regulations for sections 167 and 168 to apply in relation to a registered provider which is a charity but not a registered company, both in specified circumstances and with specified modifications.
499.This section provides an overview of the Chapter.
500.This section states that a registered provider may dispose of land, subject to the following provisions of this Chapter. This section broadly replicates the effect of section 8 of the 1996 Act which gives RSLs power to dispose of land subject to section 9 of that Act.
501.This section specifies that a non-profit registered provider may dispose of the landlord’s interest under a secure tenancy only to another non-profit registered provider, not to a profit-making registered provider or an unregistered person.
502.Subsection (1) states that any disposal of a dwelling by a registered provider requires the regulator’s consent, but only if that dwelling is social housing.
503.Subsection (2) prohibits the regulator from consenting to a disposal by a non-profit registered provider which it believes is being made with a view to enabling the provider to distribute assets to members.
504.Subsection (3) states that the regulator’s consent is not needed to a disposal of social housing by a registered provider if the disposal falls within an exception listed in section 173. This broadly replicates the effect of section 9(1) of the 1996 Act.
505.This section lists exceptions to the requirement for consent in section 172.
506.Subsection (2) states that consent is not required for disposal by way of:
an assured tenancy,
an assured agricultural occupancy,
an agreement that would be an assured tenancy of an assured agricultural occupancy but for any of paragraphs 4 to 8, paragraphs 12(1)(h) and 12ZA to 12B of Schedule 1 to the Housing Act 1988 (exclusions),
a secure tenancy, or
an arrangement that would be a secure tenancy but for any of paragraphs 2 to 12 of Schedule 1 to the Housing Act 1985 (exclusions).
507.This makes clear that consent is not required for residential tenancies. It broadly replicates the effect of section 10(1) of the 1996 Act. It also ensures that the profit-making registered providers (as well as non-profit registered providers) are exempt from the requirement to obtain consent from the regulator before granting a residential tenancy of a type listed in section 173(2).
508.Subsection (3) states that consent is not required for a disposal to which section 81 or 133 of the Housing Act 1988 or section 173 of the Local Government and Housing Act 1985 applies, as consent is already required under those provisions. This broadly replicates the effect of section 10(2) of the 1996 Act.
509.Subsection (4) states that consent is not required for a disposal under Part V of the Housing Act 1985 (right to buy).
510.Subsection (5) states that consent is not required for a disposal in pursuance of a tenant’s right to acquire under section 16 of the 1996 Act, or section 180.
511.Subsections (4) and (5) together broadly replicate the effect of section 10(3) of the 1996 Act.
512.This section sets out the procedure for the regulator giving consent to disposals.
513.Subsection (1) states that consent may be either general or specific. Together with subsection (4)(which states that consent may be conditional), this broadly replicates the effect of section 9(2) of the 1996 Act. This allows the regulator to give consent either for a broad class of disposals, or for individual properties, or properties belonging to an individual landlord.
514.Subsection (2) states that consent may be retrospective.
515.Subsection (3) states that consent may be expressed by reference to a policy for disposal submitted by a registered provider.
516.Subsection (5) requires the regulator, before giving a consent, to consult:
the HCA,
one or more bodies appearing to it to represent the interests of registered providers, and
one or more bodies appearing to it to represent the interests of tenants.
517.Subsection (6) states that subsection (5) does not apply to specific consent relating only to one or more particular registered providers or properties. The regulator would therefore have to consult the bodies listed before giving a general consent which covered a wide range of properties, or properties owned by a large number of bodies, but not when giving a specific consent.
518.This section states that a disposal by a registered provider is void if it required the regulator’s consent and the regulator had not given consent.
519.There is one exception: where a non-profit registered provider disposes of a single dwelling to one or more individuals, and the registered provider reasonably believes at the time of the disposal that the buyer intends to use the property as their principal residence. This broadly replicates the effect of section 9(4) of the 1996 Act and aims to protect individual purchasers if they unwittingly purchased a home from a registered provider who did not have consent to dispose of the property..
520.This section requires a non-profit registered provider which disposes of land other than social housing to notify the regulator of the disposal. There is power for the regulator to give a direction dispensing with this requirement. This direction is subject to the provisions in section 174(1) and (3) to (6).
521.This section requires that the accounts of a registered provider must show its net disposal proceeds as a separate “disposal proceeds fund”. It sets out what constitutes “net disposal proceeds”, including the proceeds of specified forms of sale, grant received under specified powers, repayments of specified discounts, and other proceeds of sale and grants specified by the regulator.
522.This section also requires the regulator to determine amounts to be deducted in determining the proceeds of sale, to make a direction governing the method of constituting the fund, and to make a determination governing how interest is added to the fund. It specifies that section 127 (5) to (7) and sections 141 and 142 apply in relation to a direction under this section as they apply to a direction under section 127.
523.It also specifies that where this section applies in relation to the proceeds of sale arising on disposal, section 32 of this Act, section 27 of the 1996 Act and section 52 of the Housing Act 1988 do not apply. This ensures that net disposal proceeds in the disposal proceeds fund may not be recovered by the Homes and Communities Agency under its grant recovery powers.
524.This section broadly replicates the effect of section 25 of the 1996 Act. It enables the regulator to specify the purposes to which funds in the disposal proceeds fund may be applied, and ensures that proceeds from sales under right to acquire and other disposals programmes are reinvested in new social housing. It also requires the regulator to obtain the Secretary of State’s approval for a direction on how sums in the disposals proceeds fund may be used or allocated.
525.This section provides that sections 11 to 15 of the 1996 Act apply in relation to disposals by registered providers with the modifications set out in subsection (3).
526.This section reproduces the effect of section 16(1) of the 1996 Act in relation land in England. It provides that an assured or secure tenant of a registered provider has the right to acquire if the provision of the dwelling was publicly funded and has remained in the social rented sector since that provision, and if the tenant satisfies certain qualifying conditions.
527.These qualifying conditions are equivalent to those for Right to Buy and are defined with reference to the Right to Buy legislation – Part V of the Housing Act 1985. “Publicly funded” and “remained in the social rented sector” are defined at section 181 and 182 respectively.
528.Subsection (3)(b) refers to a person who provided the dwelling by means of grant by the Housing Corporation under section 27A of the 1996 Act. This broadly replicates the effect of section 16A of the 1996 Act, which gives the right to acquire to tenants whose homes were provided under the Housing Corporations power to give grants to non-RSLs.
529.This section defines when a dwelling is “publicly funded”. This broadly replicates the effect of section 16(2) of the 1996 Act, and refers to grants under sections 18 or 27A of the 1996 Act, to homes funded through the disposals proceeds fund, or acquired since 1 April 1997 by a registered provider from a public sector landlord. In addition it refers to dwellings provided in fulfilment of a condition imposed by HCA.
530.This section defines when a dwelling has “remained in the social rented sector”. This broadly replicates the effect of sections 16(3) and 16A(4) of the 1996 Act. It provides that a dwelling has remained within the public sector if the freeholder has been, continuously, a registered provider, a registered social landlord or a public sector landlord and if each leaseholder was either a registered provider, a registered social landlord, public sector landlord or an individual holding otherwise than under a long tenancy. In addition, a dwelling provided under section 27A of the 1996 Act shall be treated as having remained in the social rented sector if it has been used exclusively for purposes permitted under the original grant or any other purposes agreed to by the Housing Corporation or the HCA.
Housing and Regeneration Act 2008