Office of Public Sector Information
768.The restrictions in the order are automatically lifted 6 months after the final report from the inquiry under section 207 is issued. The regulator also has the power to lift the restrictions before that, and the power by order to extend them for a specified period of up to 6 months. This power may only be used in relation to a registered charity if the charity has received public assistance (defined in section 274).
769.This section gives the regulator similar powers to those in section 256, but following rather than during an inquiry. An order under this section has effect until revoked by the regulator.
770.This section is supplemental on sections 256 and 257. It requires the regulator to take all reasonable steps to give at least 14 days’ notice to the provider and the person holding money or securities on its behalf. Contravention of an order is an offence punishable by fine.
771.This section applies where an inquiry under section 206 is in progress in respect of a non-profit registered provider, and one of two Cases applies. Case 1 is that the regulator has reasonable grounds for believing that the affairs of a registered provider have been mismanaged and that the interests of tenants or its assets require protection. Case 2 is that as a result of an interim report from an inquiry, the regulator is satisfied that the provider’s affairs have been mismanaged.
772.The regulator may suspend an officer, employee or agent of the registered provider who it considers contributed to that failure or mismanagement. The suspension comes to an end 6 months after the final report is made, or the regulator can end it sooner. The regulator may only suspend an officer of a registered charity if it has received public assistance and must notify the Charity Commission.
773.This section gives the regulator similar powers to those under section 259, but permits permanent removal following (rather than during) an inquiry, and suspension pending a decision on permanent removal. The regulator must take all reasonable steps to give at least 14 days’ notice to the person and the provider.
774.This section is supplemental to sections 259 and 260. It allows the regulator to give directions to the registered provider about the performance of the suspended or removed person’s functions or any other matter arising from the suspension, and allows the regulator to appoint a person to perform the suspended person’s functions.
775.This section disqualifies anyone from acting as an officer of a registered provider if they have been removed (not suspended) under section 260, or under parts of previous Acts which now only apply to Wales. The regulator may waive a disqualification if the person applies for a waiver. If they do act as an officer while disqualified, their acts are not invalid by reason only of the disqualification – if their acts were automatically void, this could cause problems for the provider.
776.This section requires the regulator to keep a register of disqualified persons and waivers which is publicly available.
777.This section makes it an offence for a person to act as an officer while disqualified, which can make them liable to imprisonment or a fine.
778.This section permits the regulator to require repayment of part or all of any benefits received by a person acting as an officer while disqualified.
779.The section gives the regulator the power to remove an officer of a non-profit registered regulator in seven specified Cases. These are:
the officer has been adjudged to be bankrupt,
the officer has made an arrangement with creditors,
the officer has been subject to a disqualification order or a disqualification undertaking under the Company Directors Disqualification Act 1986 (or the equivalent statutory provision for Northern Ireland),
the officer has been subject to an order under section 429(2) of the Insolvency Act 1986 (which occurs where a person fails to make a payment under a county court administration order under the County Courts Act 1984),
the officer is disqualified under section 72 of the Charities Act 1993 from being a charity trustee (whether this is in relation to their position as an officer of the registered provider that is a charity or as an officer of a different charity),
the officer is incapable of acting by reason of mental disorder,
the officer is impeding the proper management of the registered provider by reason of absence or failure to act.
780.Section 267 is supplemental on section 266. It provides that before making an order under section 266 the regulator must give both the officer concerned and the registered provider at least 14 days’ notice. It also specifies that an order under section 266 may only be made in respect of a registered charity if that charity has received public assistance as defined in section 274.
781.This section gives anyone removed or suspended under sections 259, 260 or 266 a right of appeal to the High Court.
782.This section gives the regulator the power to appoint a person as an officer of a non-profit registered provider. Subsection (1) specifies that the regulator may do this where:
it is to replace an officer removed under section 266;
the registered provider has no officers; or
the regulator thinks that the additional officer is necessary for the proper management of the registered provider’s affairs.
783.Subsection (2) specifies that the regulator may appoint more than a minority of the officers of a registered provider only if the provider has fewer officers than required by its constitution.
784.Subsection (3) says that the regulator’s power in subsection (1) overrides any restrictions in the registered provider’s constitution on the eligibility requirements for officers, or the number of officers that the registered provider may have.
785.Subsection (4) requires that an order made by the regulator under subsection (1) must specify the period for which, and the terms on which, the person is appointed as an officer. It also provides that the regulator may renew the appointment when the period specified in the order under subsection (1) expires, and that the new officer appointed by the regulator may resign or retire as allowed in the registered provider’s constitution.
786.Subsection (5) provides that an officer appointed by the regulator under subsection (1) has the same standing, in terms of rights, powers and responsibilities, as if he or she had been appointed as an officer under the constitution of the provider.
787.Subsection (6) provides that the regulator may only make an appointment in relation to a registered charity if one of the conditions in section 274 is fulfilled (which are the conditions that the registered charity has received either homes or financial assistance that are relevant to the functions of the regulator under the specified statutory provisions), and the regulator has consulted the Charity Commission before making the order under subsection (1).
788.This section defines “officer” in relation to registered providers.
789.This section defines the terms “subsidiary” and “associate” for the purposes of this Part.
790.This section clarifies when a person is considered to be a member of the family of another person, for the purposes of this Part.
791.This section defines what is a disposal of a property for the purposes of this Part.
792.Subsection (2)makes it clear that granting an option to require a disposal at some point in the future will be treated as making a disposal
793.This section defines ‘public assistance’ for the purposes of Part 2. Public assistance includes grant given by the HCA under section 22; assistance for privately let accommodation under section 24 of the Local Government Act 1988; assistance in relation to housing transfers under section 34 of the Housing Act 185 or section 135 of the Leasehold Reform, Housing and Urban Development Act 1993; and various other housing grants including social housing grant under section 18 of the 1996 Act.
794.This section defines a number of terms, either directly or by reference to other Acts.
795.This section sets out a table listing expressions defined within this Part.
796.This section gives effect to Schedule 9.
797.This section provides that registered social landlords which, at the date section 61 comes into force, were in a register maintained by the Housing Corporation under section 1 of the 1996 Act are to be entered in the register maintained by the regulator under section 111 as non-profit registered providers.
798.This Chapter provides for the introduction of mandatory sustainability rating for new homes in England and Wales. This will be information in the form of either a certificate showing the results of assessment against sustainability standards, or a statement that there is no certificate because no assessment has been made. Sustainability standards already exist in the Code for Sustainable Homes (“the Code”). Since April 2007, the Code has operated on a voluntary basis in England only. The purpose of sustainability standards is to improve the sustainability of new homes during both the construction and the lifetime of the home.
799.The Chapter includes provision for extension of the provisions to conversions of existing buildings and to non-residential properties, although there are no present proposals to use those powers.
800.The Chapter applies to England and Wales. Any power to make delegated legislation under the Chapter is to be exercised by the appropriate national authority: the Secretary of State in relation to England, and the Welsh Ministers in relation to Wales.
801.This section places a duty on a person selling a newly constructed residential property to give the purchaser of the property information about the sustainability of the new property free of charge before the sale is agreed. This information is in the form of either a sustainability certificate or a statement that there is no sustainability certificate for the property (subsections (1), (2), (4) and (9)).
802.The sustainability certificate can be given as either an interim certificate (if the property has not been completed yet) or a final certificate (available after the property has been built and assessed). Where an interim certificate is given before sale, the final certificate must be given at a later point to be prescribed in regulations, which may be after the sale is completed (subsections (3), (10) and (11)).
803.The section provides for powers to make regulations to bring forward the point at which a sustainability certificate or statement of non-assessment must be supplied, to make exceptions to the duties under the section, and to provide for alternative duties where such exceptions apply (subsections (5), (6) and (7)). There is a defence of reasonable excuse for not complying with any of duties in this section (subsection (8)).
804.This section defines the sustainability of a residential property in relation to the materials used in the property, other aspects of its design and construction, and any services, fittings and equipment provided in or in connection with the property (as well as related demolition and off site activities). Sustainability is the extent to which prescribed sustainability standards are met in these respects (subsections (1) and (4)).
805.Sustainability standards will be prescribed in regulations by the appropriate national authority for ensuring or furthering the following listed purposes (subsection (2)):
health, safety, welfare and convenience of people in or about the property, and others who may be affected by it;
efficient management of the property and of its construction;
energy efficiency;
water efficiency and minimising flood risk;
efficient waste management;
protecting or enhancing the environment; and
preventing or detecting crime.
806.The appropriate national authority can by regulations amend this list of purposes from time to time by adding to, removing or altering the items listed (subsection (3)).
807.This section ensures that assessments of sustainability for residential properties are carried out only by authorised assessors. The appropriate national authority must by regulations specify who are to be authorised assessors, and may make further provision about them (subsections (1), (2) and (3)).
808.Regulations may specify that authorised assessors be accredited under an accreditation scheme established or approved by the appropriate national authority, and may provide for the charging of fees under accreditation schemes (subsections (4), (5) and (6)).
809.Regulations concerning accreditation schemes must require the appropriate national authority to be satisfied that any scheme approved contains adequate provision for -
ensuring that members of the scheme are fit and proper persons who are qualified to carry out assessments;
ensuring that a code of conduct for members of the scheme is maintained and published;
ensuring that members of the scheme have suitable indemnity insurance;
facilitating the resolution of complaints against members;
requiring certificates issued by members to be entered into the register of certificates (see paragraph on Section 282)
keeping a public register of members of the scheme; and
such other purposes as may be specified in the regulations (subsections (7) and (8)).
810.Regulations may also provide for accreditation schemes to contain provision about certificates and other documents within the scope of the scheme including the terms on which they may be provided (subsection (9)).
811.This Section empowers the appropriate national authority to make regulations about a register of sustainability certificates (subsection (1)). Regulations may also provide for interim certificates and other documents to be included on the register (subsections (9) and (10)).
812.The regulations under subsection (1) may provide in particular (subsection (2)) for:
the register to be kept by or on behalf of the appropriate national authority or by such other person as the regulations may specify (subsection (3));
the payment of a fee to enter a document onto the register (subsection (4)); and
preventing the disclosure of the register or documents or information in it except in accordance with the regulations (subsection (5));
the circumstances in or purposes for which the register may, on payment of any fee, be inspected, documents or information may be copied or given, and disclosure made of anything so obtained (subsections (6) and (7)).
813.Contravention of a prohibition on disclosure from the register is a summary offence punishable by a fine not exceeding level 5 on the standard scale, currently £5,000 (subsection (8)).
814.This section provides for every local weights and measures authority to enforce the duties in section 279 in its area.
815.This section empowers officers of an enforcement authority to require a seller of a newly constructed residential property to produce for inspection (or to provide a hard copy) of the sustainability certificate or statement of non-assessment (subsections (1) to (3)). The request may be made up to six months after the last day on which the person concerned could have complied with the duty under section 279, and must be complied with within 7 days (subsections (4) and (6)). The duty in this section is subject to a defence of reasonable excuse for not complying with it (subsection (5)).
This section provides for enforcement officers to give a penalty charge notice to a person the officer believes has committed a breach of the duties set out in section 279 or section 284. The notice may be given up to six months from the commission of the breach (subsections (1) and (2)). Schedule 10 has effect in relation to penalty charge notices (subsection (3)).
816.This section provides for offences of obstructing an enforcement officer acting in pursuance of his duties under the Chapter (subsection (1)), and of impersonating an enforcement officer by purporting to act as one in pursuance of either section 284 or section 285 (subsection (2)). Both are punishable on summary conviction with a fine not exceeding level 5 on the standard scale, currently £5,000 (subsection (3)).
817.This section allows the appropriate national authority to make grants towards the development and subsequent operation of a register under section 282 (subsection (1)(a)). Grants may also be made towards the development and operation of accreditation schemes or any other provision to be made in regulations under the Chapter (subsection (1)(b)). Such a grant may be subject to conditions including conditions for the purposes for which it may be used, and for full or partial repayment of it in specified circumstances (subsection (2)).
818.This section allows the appropriate national authority, by regulations, to suspend and revive the operation of any duty imposed by section 279 (subsection (1)). Suspension may be for a specified time only, and a duty that has been revived may be suspended again (subsections (2) and (3)).
819.This section empowers the appropriate national authority to make regulations about the disclosure of sustainability and interim certificates, statements of non-assessment, any information derived from such documents, and any information collected by an authorised assessor in preparing a certificate (subsection (1)). The disclosure without reasonable excuse of anything whose disclosure is prohibited by regulations under subsection (1) is a summary offence punishable by a fine not exceeding level 5 on the standard scale, currently £5,000 (subsection (2)).
820.This section allows the appropriate national authority to make provision for the general purposes, or any particular purpose of the Chapter, or in consequence of any provision made under the Chapter or for giving full effect to it (subsection (1)). Such regulations may in particular provide for:
the form and content of certificates and statements of non-assessment, or for the form and content of such documents to be such as the appropriate national authority may approve;
ways in which sustainability standards can be met;
the issue of guidance; and
any interaction between provision under the Chapter with provision made by other enactments in relation to home information packs or energy performance certificates (subsections (2) to (4)).
821.This section allows the appropriate national authority to extend the provisions of the Chapter to:
non-residential buildings;
newly converted buildings, both residential and non-residential; or
prescribed descriptions of properties within any of these categories (subsections (1), (2) and (5)).
822.A property is newly converted for the purposes of the Chapter if it has been converted but not yet used for its intended purpose, is being converted, or its conversion is being designed (subsection (3)), and regulations may provide for the circumstances in which a building is to be treated as converted (subsection (4)).
823.The section further allows for the appropriate national authority to broaden by regulations the definition of a purchaser in section 292(1) so as to include descriptions of persons who are taking steps with a view to deciding whether to purchase residential properties (subsections (6) and (7)).
824.This section provides for definitions of terms and phrases used in the Chapter (subsections (1) to (7)). Subsection (1) defines a purchaser as a person who has made an offer to purchase a property or has purchased it. Non-compliance with any requirement of the Chapter does not invalidate a sale or purchase of a property (subsection (8)).
825.This section sets out the definitions of key terms used in the Chapter.
826.Section 294 makes amendments to Schedule 3A to the Housing Act 1985. Schedule 3A outlines the consultation process necessary before a local housing authority can seek the consent of the Secretary of State to transfer ownership of occupied council housing to a private sector landlord (e.g. a housing association). The amendments add the requirement that the local authority must hold a ballot of affected tenants as part of the consultation process, and that a vote in such a ballot against transfer will prevent the Secretary of State granting consent to the transfer. The powers of the Secretary of State are exercisable in Wales by the Welsh Ministers.
827.Subsection (2) sets out at what stage in the consultation process the ballot should take place, requires the local authority to conduct the ballot themselves or appoint an appropriate person to do so, and requires that, once the result of the ballot is known, the local authority must inform tenants of the result and, where the local authority intends proceeding with the transfer, inform them that they can, within 28 days, raise any concerns with the Secretary of State or (as the case may be) the Welsh Ministers.
828.Subsection (3) establishes that the Secretary of State cannot grant consent to a transfer where the majority of those voting in the ballot vote against the proposal.
829.Subsection (4) requires the Secretary of State or (as the case may be) the Welsh Ministers to issue guidance to local authorities on meeting the requirements in Schedule 3A regarding consultation, and it requires relevant local authorities to have regard to such guidance.
830.Subsections (5) and (6) establish that these new provisions do not apply to consultations that have already begun, and make clear at what point a consultation can be deemed to have begun.
831.Section 295 amends section 27AB of the Housing Act 1985. Section 27AB provides powers to the Secretary of State to make regulations requiring local housing authorities to enter into agreements with tenant management organisations over the management of their council housing. The amendments extend the list of what those regulations might include, and make other minor provisions. The powers of the Secretary of State are exercisable in Wales by the Welsh Ministers.
832.Subsection (2) permits the regulations to require the local authority to submit certain information to the tenant management organisation, and to require that the local authority co-operate in certain ways with that organisation.
833.Subsection (3) permits the regulations to determine that particular questions be determined by the person making the regulations as well as the authority, to set time limits on carrying out the requirements of the regulations, and to require that persons exercising functions under the regulations act in accordance with guidance or directions issued by the Secretary of State.
834.Section 296 adds a new section 34A to the Housing Act 1985.
835.Section 34A(1) gives the appropriate person (in England the Secretary of State, in Wales the Welsh Ministers) powers to make regulations where a local housing authority has been served a notice by a group of tenants requesting a transfer of occupied council housing from ownership of the local housing authority to a named registered private sector landlord (e.g. a housing association).
836.Section 34A(2) sets out requirements that may be placed on the local housing authority in the regulations. These comprise:
providing assistance to the tenants (which could be financial support, accommodation, other facilities or training);
arranging a feasibility study to look into the tenants’ proposals;
providing information to the tenants;
co-operating in certain ways with the tenants;
arranging ballots with respect to the proposals; and
entering into an agreement for the disposal.
837.Section 34A(3) sets out two further matters that might be included:
provision identifying the land and houses affected by the proposal, and
provision requiring that the agreement between the local housing authority and the private sector landlord be in a form approved by the appropriate person.
838.Section 34A(4) sets out further procedural arrangements that might be included in the regulations:
provision that certain questions arising from the regulations be answered by the authority or the appropriate person;
setting time limits for carrying out requirements set in the regulations; and
requiring persons exercising functions under the regulations to act in accordance with guidance or directions given by the appropriate person.
839.Section 34A(6) provides that the regulations must ensure that the local housing authority can make representations to the appropriate person before a decision to dispose is made.
840.The regulations are subject to the negative resolution procedure.
841.This section will enable local housing authorities and registered providers of social housing (in England) and registered social landlords (in Wales) to offer tenancies which will not be secure or assured tenancies to certain tenants who have lost or are potentially at risk of losing their secure or assured tenancy. These tenancies will be offered for the purposes of providing behavioural support services to tenants against whom a possession order for anti-social behaviour has been made or to tenants who could face possession proceedings on the grounds of anti-social behaviour.
842.Subsection (1) inserts a new paragraph 4ZA into Schedule 1 to the Housing Act 1985 (tenancies which are not secure tenancies).
843.Sub-paragraph (1) of the new paragraph provides that family intervention tenancies are not secure tenancies.
844.Sub-paragraph (2) provides that the tenancy can become a secure tenancy if the landlord so notifies the tenant.
845.Sub-paragraph (3) defines a family intervention tenancy for the purposes of this paragraph as a tenancy granted by a local authority to a person for the purposes of the provision of behaviour support services and against whom a possession order in respect of another dwelling-house:
has been made in relation to a secure tenancy on the grounds of anti-social behaviour or;
could have been so made in relation to a secure tenancy; or
could have been so made if the tenant had had such a tenancy.
846.Sub-paragraph (4) provides the new tenancy will not be a family intervention tenancy unless the local housing authority has served a notice under sub-paragraph (5).
847.Sub-paragraph (5) provides the information the notice must contain including that the tenant is under no obligation to enter into the tenancy or unless otherwise required to do so to surrender any existing tenancy or possession of a dwelling-house. Entry into the tenancy will be voluntary.
848.Sub-paragraph (6) provides that the contents of the notice may be amended by regulations made by statutory instrument. These regulations may contain transitional, transitory or saving provisions. Where regulations amend or repeal the contents of the notice set out in sub-paragraph (5) they will be subject to affirmative procedure.
849.In addition the notice must contain advice to the tenant as to how they may be able to obtain assistance in relation to the notice (sub-paragraph (7)). The type of advice to be provided in the notices may be provided for by regulations (sub-paragraph (8)) made by statutory instrument.
850.Sub-paragraph (12) provides definitions for the terms used in the new paragraph 4ZA. “Behaviour support services” is defined as those support services that are identified in a behaviour support agreement and are provided by any person to the new tenant or persons living with them for the purposes of addressing the anti-social behaviour which has led to the local authority taking possession action or of being of the opinion that such a possession claim could be made. Behaviour support agreements are defined as agreements between the tenant and the local housing authority about behaviour and the provision of support services.
851.Subsection (2) inserts new paragraph 12ZA into Part 1 of Schedule 1 to the Housing Act 1988 (tenancies which cannot be assured tenancies).
852.New paragraph 12ZA mirrors the provisions in new paragraph 4ZA above in respect of family intervention tenancies granted by registered providers of social housing (in England) and registered social landlords (in Wales).
853.Subsection (3) provides that the new provisions in new paragraph 4ZA of Schedule 1 to the Housing Act 1985 and paragraph 12ZA of Part 1 of Schedule 1 to the Housing Act 1988 will not apply to any tenancy granted before this section comes into force.
854.This section makes provision in relation to the termination of local housing authority family intervention tenancies.
855.Subsection (1) provides that a local authority should not serve a notice to quit on a tenant of a family intervention tenancy unless a notice under subsection (2) has been served on the tenant and either:
the tenant has not requested a review of the kind specified in the notice (right to request, within 14 days of the service of the notice, a review of the authority’s decision to evict);
the tenant withdraws the request for a review; or
a notice under subsection (4)(b) has been served on the tenant (notice of the reasoning and decision of the requested review).
856.Subsection (2) sets out the required contents of the notice.
857.Subsections (3) and (4) explain what a local authority must do if a tenant requests a review of the local authority's decision within 14 days of the service of the notice under subsection (2). The local authority must carry out the review and serve notice of their decision and the reasons for it on the tenant.
858.Subsection (5) provides that an “appropriate authority” (i.e. the Secretary of State for England or the Welsh Ministers for Wales) may make regulations about the review procedure.
859.The procedure to be followed on review may be provided by regulations made by statutory instrument. The regulations may contain:
a description of the person who makes the review decision;
the circumstances under which the tenant would be entitled to an oral review;
whether or not and by whom the tenant can be represented during the review hearing.
These regulations will be subject to the negative resolution procedure.
860.Subsection (7) provides that any notice to quit or notice under subsection (2) served in respect of a family intervention tenancy, must also contain advice to the tenant about obtaining assistance in relation to the notice.
861.Subsection (8) provides that the type of advice the notice to quit or notice under subsection (2) must include may be provided by regulations subject to the negative resolution procedure.
862.Subsection (10) effectively applies the provisions of this section only to tenancies granted on or after the coming into force of this section.
863.Section 299 introduces Schedule 11.
Housing and Regeneration Act 2008