PART 2 continued CHAPTER 6 continued
(1) An inquiry may be held in relation to a registered charity only if it has received public assistance.
(2) An inquiry in relation to a registered charity may only relate to its activities relating to housing.
(3) If an inquiry is held in relation to a registered charity the regulator shall notify the Charity Commission.
(1) Where an inquiry in respect of a registered provider is being held, or has been held, under section 206, 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.
(2) “Qualified auditor” means a person eligible for appointment as auditor of the registered provider’s ordinary accounts.
(3) On completion of the audit, the auditor shall report to the regulator about such matters and in such form as the regulator determines.
(4) The revenue accounts of a registered charity may be audited under this section only insofar as they relate to its housing activities.
(5) The registered provider shall pay the costs of the audit (including the auditor’s remuneration).
This group of sections applies only to non-profit registered providers.
(1) This section applies to an industrial and provident society.
(2) An amendment of the society’s rules requires consent if it—
(a) alters the society’s objects,
(b) makes provision about the distribution of assets to members, or
(c) enables the society to become, or cease to be, a subsidiary or associate of another body.
(3) An amendment of the rules which requires consent is effective only if the regulator has first consented.
(4) The regulator may not consent to an amendment which it thinks would turn the society into a profit-making organisation.
(5) The society must notify the regulator of an amendment of the rules which does not require consent.
(6) In relation to an amendment which requires consent the requirement in section 10(1) of the Industrial and Provident Societies Act 1965 (c. 12) (sending copies of amendment of rules to FSA) is satisfied only if the copies are accompanied by a copy of the regulator’s consent.
(7) The preceding provisions of this section shall be treated as if they formed part of that Act as well as of this Act.
(8) The Secretary of State may by order amend the list in subsection (2).
(1) This section applies to a registered charity which is not a registered company.
(2) An amendment of the charity’s objects is effective only if the Charity Commission has first consented.
(3) Before giving consent the Charity Commission must consult the regulator.
(1) This section applies to a registered company.
(2) An amendment of the company’s articles of association requires consent if it—
(a) alters the company’s objects,
(b) makes provision about the distribution of assets to members, or
(c) enables the company to become, or cease to be, a subsidiary or associate of another body.
(3) An amendment of the articles of association which requires consent is effective only if the regulator has first consented.
(4) The regulator may not consent to an amendment which it thinks would turn the company into a profit-making organisation.
(5) The company must notify the regulator—
(a) of an amendment of the articles of association which does not require consent, or
(b) of a change to its name or registered office.
(6) In relation to an amendment which requires consent the requirement in section 30 of the Companies Act 2006 (c. 46) (sending copy of resolution to registrar) is satisfied only if the copy is accompanied by a copy of the regulator’s consent.
(7) The Secretary of State may by order amend the list in subsection (2).
(1) The regulator shall publish—
(a) guidance about complaints to the regulator about the performance of registered providers, and
(b) guidance about how it uses and intends to use powers under this Chapter and Chapter 7.
(2) Guidance under subsection (1)(a) must, in particular, specify—
(a) the procedure to be followed in making a complaint,
(b) the criteria used by the regulator in deciding whether to investigate a complaint, and
(c) periods within which the regulator aims to inform complainants of the result of complaints.
(3) The regulator shall have regard to guidance under this section.
Before giving guidance under section 215 the regulator must consult—
(a) one or more bodies appearing to it to represent the interests of registered providers,
(b) one or more bodies appearing to it to represent the interests of tenants,
(c) one or more bodies appearing to it to represent the interests of local housing authorities,
(d) the Audit Commission for Local Authorities and the National Health Service in England, and
(e) the HCA.
(1) The regulator may operate a scheme for the purpose of accrediting persons who provide services in connection with the management of social housing.
(2) The regulator may approve a scheme operated by someone else for that purpose.
(3) Approval may be withdrawn.
(4) A scheme may include provision about—
(a) eligibility for accreditation;
(b) standards to be met by accredited persons (which may operate by reference to standards under section 193);
(c) monitoring compliance;
(d) complaints against accredited persons;
(e) renewal, suspension and withdrawal of accreditation.
(5) Accreditation, or continued accreditation, may be conditional on the payment of fees.
(6) Standards under section 193 may refer to accreditation under this section.
(1) This section applies where the regulator is deciding—
(a) whether to exercise a power under this Chapter,
(b) which power under this Chapter to exercise, or
(c) how to exercise a power under this Chapter.
(2) The regulator shall consider—
(a) the desirability of registered providers being free to choose how to provide services and conduct business;
(b) whether the failure or other problem concerned is serious or trivial;
(c) whether the failure or other problem is a recurrent or isolated incident;
(d) the speed with which the failure or other problem needs to be addressed.
This group of sections allows the regulator to require a registered provider to take specified action to resolve a specified failure or other problem.
(1) The regulator may give an enforcement notice to a registered provider if the regulator is satisfied that—
(a) any of the following cases applies, and
(b) giving an enforcement notice is appropriate (whether it is likely to be sufficient in itself or a prelude to further action).
(2) Case 1 is where the registered provider has failed to meet a standard under section 193 or 194.
(3) Case 2 is where the affairs of the registered provider have been mismanaged.
(4) Case 3 is where the registered provider has failed to comply with an earlier enforcement notice.
(5) Case 4 is where the registered provider has failed to publish information in accordance with a requirement under section 228(3) or 240(3).
(6) Case 5 is where the interests of tenants of the registered provider require protection.
(7) Case 6 is where the assets of the registered provider require protection.
(8) Case 7 is where the registered provider has given an undertaking under section 125 and failed to comply with it.
(9) Case 8 is where the registered provider has failed to pay an annual fee under section 117(2).
(10) Case 9 is where an offence under this Part has been committed by the registered provider.
(11) Case 10 is where the registered provider has failed to comply with an order made by an ombudsman appointed by virtue of section 124.
(12) Where the regulator is satisfied that an offence under this Part has been committed in respect of a registered provider but by another person (such as a member, employee or agent of the registered provider)—
(a) Case 9 applies,
(b) the regulator may give an enforcement notice to the other person, and
(c) this Chapter applies with the substitution of references to that other person for references to the registered provider.
(1) An enforcement notice must—
(a) specify the grounds on which it is given,
(b) specify the action the regulator wants the registered provider to take in response to the notice,
(c) specify when the action is to be taken (which may be immediately on receipt of the notice), and
(d) explain the effect of sections 223 to 225.
(2) The action specified in an enforcement notice may include publishing the notice in a specified manner.
If the regulator gives an enforcement notice it must send a copy to the HCA.
A registered provider who is given an enforcement notice may appeal to the High Court.
The regulator may withdraw an enforcement notice by notice to the registered provider.
(1) If a registered provider does not comply with an enforcement notice the regulator shall consider exercising another power under Chapter 6 or this Chapter.
(2) In the case of an enforcement notice given to a person other than the registered provider by virtue of section 220(12), the regulator may only—
(a) exercise the power to issue a penalty notice to the person in accordance with the next group of sections, or
(b) take steps to have the person prosecuted for the offence by reference to which the enforcement notice was given.
(3) A person to whom an enforcement notice is given on the ground in Case 9 of section 220 may not be prosecuted for the offence by reference to which the enforcement notice was given unless the person fails to comply with the enforcement notice.
This group of sections allows the regulator to penalise failures on the part of registered providers by the imposition of fines.
(1) The regulator may require a registered provider to pay a penalty if the regulator is satisfied that—
(a) any of the following cases applies, and
(b) the imposition of a penalty is appropriate (whether or not as part of a response including other action).
(2) Case 1 is where the registered provider has failed to meet a standard under section 193 or 194.
(3) Case 2 is where the affairs of the registered provider have been mismanaged.
(4) Case 3 is where the registered provider has failed to comply with an enforcement notice.
(5) Case 4 is where the registered provider has given an undertaking under section 125 and failed to comply with it.
(6) Case 5 is where the registered provider has failed to pay an annual fee under section 117(2).
(7) Case 6 is where an offence under this Part has been committed by the registered provider.
(8) Where the regulator is satisfied that an offence under this Part has been committed in respect of a registered provider but by another person (such as a member, employee or agent of the registered provider)—
(a) Case 6 applies,
(b) the regulator may require the other person to pay a penalty, and
(c) this Chapter applies with the substitution of references to that other person for references to the registered provider.
(9) In order to rely on Case 6 the regulator must be satisfied beyond reasonable doubt that it applies.
(1) A penalty is imposed by the regulator giving notice (a “penalty notice”) to the registered provider.
(2) The notice must specify—
(a) the grounds on which the penalty is imposed,
(b) the amount of the penalty,
(c) how the penalty must be paid,
(d) a period within which it must be paid, and
(e) any interest or additional penalty which, by virtue of section 234(2), is payable in the event of late payment.
(3) The notice may require the registered provider to publish information about the penalty in a specified manner.
(4) The notice must explain the effect of sections 234(1), (3) and (6) and 235.
(5) The Secretary of State—
(a) shall make regulations about the period under subsection (2)(d),
(b) may make other regulations about the form and content of a penalty notice, and
(c) may make regulations about the manner in which a penalty notice is given.
(1) The amount of a penalty imposed on the ground specified in Case 6 of section 227 may not exceed the maximum amount of fine that a magistrates' court could impose for the relevant offence.
(2) The amount of a penalty imposed on the ground specified in any other Case of that section may not exceed £5,000.
(3) The Secretary of State may by order amend the amount specified in subsection (2).
(1) Before giving a penalty notice to a registered provider the regulator must give the provider a notice (a “pre-penalty warning”)—
(a) specifying grounds on which the regulator thinks a penalty could be imposed,
(b) warning the provider that the regulator is considering imposing a penalty,
(c) including any indication that the regulator is able to give of the likely amount of any penalty, and
(d) explaining the effect of sections 231, 234(1), (3) and (6) and 235.
(2) If the regulator gives a pre-penalty warning it must send a copy to—
(a) the HCA, and
(b) any other persons it thinks appropriate.
(3) For the purposes of subsection (2)(b) the regulator shall consider, in particular, any person who provided information as a result of which the pre-penalty warning is given.
(4) A pre-penalty warning must—
(a) refer to section 125 (voluntary undertaking), and
(b) indicate whether or to what extent the regulator would accept a voluntary undertaking instead of, or in mitigation of, a penalty.
(5) A pre-penalty warning may be combined with notice under one or more of sections 242, 248, 250 and 252.
(1) A pre-penalty warning must specify a period during which the registered provider may make representations to the regulator.
(2) The period must—
(a) be a period of at least 28 days, and
(b) begin with the date on which the registered provider receives the pre-penalty warning.
(3) Representations may concern—
(a) whether a penalty should be imposed;
(b) the amount of any penalty that may be imposed.
(4) After the end of the period specified under subsection (1) the regulator shall—
(a) consider any representations made, and
(b) decide whether to impose a penalty.
If the regulator imposes a penalty it must send a copy of the penalty notice to the HCA.
(1) This section applies where the regulator receives money by way of penalty.
(2) The regulator may deduct a sum which represents—
(a) the direct costs to the regulator of imposing and enforcing the penalty, and
(b) a reasonable share of expenditure by the regulator which is indirectly referable to the imposition and enforcement of the penalty.
(3) Any excess shall be paid to the HCA, to be used for purposes which appear to it to amount to investment in social housing.
(1) A penalty shall be treated as a debt owed to the regulator.
(2) The Treasury may make regulations authorising the regulator—
(a) to charge interest on penalty not paid during the period specified under section 228(2)(d);
(b) to impose one or more additional penalties where a penalty is not paid during that period.
(3) Interest and additional penalty shall be treated as penalty (and may have the effect of increasing the penalty above a limit set by section 229).
(4) Regulations under subsection (2)(a) may provide for an interest rate to be—
(a) set by a specified person, or
(b) determined in accordance with the regulations.
(5) A penalty notice may include provision allowing a discount if the penalty is paid on or before a date specified in the notice (falling within the period specified under section 228(2)(d)).
(6) A person to whom a penalty notice is given on the ground in Case 6 of section 227 may not be prosecuted for the offence by reference to which the penalty notice was given.
A registered provider who is given a penalty notice may appeal to the High Court against—
(a) the imposition of the penalty,
(b) its amount, or
(c) both.
This group of sections allows the regulator to award compensation to a victim of a failure on the part of a registered provider.
(1) The regulator may require a registered provider to pay compensation if the regulator is satisfied that—
(a) either of the following cases applies, and
(b) the award of compensation is appropriate (whether or not as part of a response including other action).
(2) Case 1 is where the registered provider has failed to meet a standard under section 193 or 194.
(3) Case 2 is where the registered provider has given an undertaking under section 125 and failed to comply with it.
(1) Compensation in respect of a failure may be awarded to one or more persons who have suffered as a result of the failure.
(2) But an award may be made only to—
(a) a specified tenant of social housing provided by the registered provider,
(b) each member of a specified class of tenants of social housing provided by the registered provider, or
(c) each member of the class of tenants of social housing provided by the registered provider.
(1) The regulator may not award compensation to a person in respect of a matter if an ombudsman appointed by virtue of section 124 has awarded compensation to the person in respect of the matter.
(2) But if compensation awarded by an ombudsman by virtue of section 124 has not been paid as required, the regulator may award compensation.
(1) Compensation is awarded by the regulator giving notice (a “compensation notice”) to—
(a) the registered provider, and
(b) the person to be compensated.
(2) The notice must specify—
(a) the grounds on which the compensation is awarded,
(b) the amount of the compensation,
(c) the person to be compensated,
(d) any interest or additional compensation which, by virtue of section 244(2), is payable in the event of late payment, and
(e) a period within which it must be paid.
(3) The notice may require the registered provider to publish information about the compensation award in a specified manner.
(4) The notice must explain the effect of sections 244(1) and (3) and 245.
(5) The Secretary of State—
(a) shall make regulations about the period under subsection (2)(e),
(b) may make other regulations about the form and content of a compensation notice, and
(c) may make regulations about the manner in which a compensation notice is given.
(1) This section applies when the regulator is considering—
(a) whether to award compensation, or
(b) the amount of compensation to award.
(2) The regulator must take account of any information available to it about the financial situation of the registered provider.
(3) The regulator must consider the likely impact of the compensation on the registered provider’s ability to provide services.
(4) In particular, the regulator must aim to avoid—
(a) jeopardising the financial viability of the registered provider,
(b) preventing the registered provider from honouring financial commitments, or
(c) preventing the registered provider from taking action to remedy the matters on the grounds of which the compensation might be awarded.
(1) Before giving a compensation notice to a registered provider the regulator must give the provider a notice (a “pre-compensation warning”)—
(a) specifying grounds on which the regulator thinks compensation could be awarded,
(b) warning the provider that the regulator is considering awarding compensation to a specified person,
(c) including any indication that the regulator is able to give of the likely amount of any compensation, and
(d) explaining the effect of sections 243, 244(1) and (3) and 245.
(2) Before giving a pre-compensation warning the regulator must consult the person appointed by virtue of section 124 as the ombudsman for the scheme of which the registered provider is a member.
(3) If the regulator gives a pre-compensation warning it must send a copy to—
(a) the HCA, and
(b) any other persons it thinks appropriate.
(4) For the purposes of subsection (3)(b) the regulator shall consider, in particular, any person who provided information as a result of which the pre-compensation warning is given.
(5) A pre-compensation warning must—
(a) refer to section 125 (voluntary undertaking), and
(b) indicate whether or to what extent the regulator would accept a voluntary undertaking instead of, or in mitigation of, awarding compensation.
(6) A pre-compensation warning may be combined with notice under one or more of sections 230, 248, 250 and 252.
(1) A pre-compensation warning must specify a period during which the registered provider may make representations to the regulator.
(2) The period must—
(a) be a period of at least 28 days, and
(b) begin with the date on which the registered provider receives the pre-compensation warning.
(3) Representations may address—
(a) whether compensation should be awarded;
(b) the amount of any compensation that may be awarded.
(4) After the end of the period specified under subsection (1) the regulator shall—
(a) consider any representations made, and
(b) decide whether to award compensation.