Section 216: Overcrowding

507.     Subsection (1) enables the appropriate national authority to make provision by order for determining whether a dwelling is overcrowded for the purposes of Part 10 of the Housing Act 1985. Currently section 324 of that Act defines overcrowding with reference to the room standard set out in section 326 or the space standard set out in section 327.

508.      By virtue of subsection (1)(b) and (c), an order may modify the operation of sections 139 to 144 of this Act, which enable LHAs to serve overcrowding notices limiting the number of persons occupying or likely to be occupying a HMO (other than a HMO which is subject to licensing under Part 2 and in respect of which a management order is in force under Part 4). An order under section 216 may remove the discretion of LHAs to serve notices under sections 139 to 144, so that overcrowding is regulated only by provisions of Part 10.

509.     Subsection (2) provides that an order under section 216 may regulate the making by LHAs of determinations as to whether premises are overcrowded. It may prescribe the factors that LHAs must take into account in making such determinations, and the procedure to be followed. An order under subsection (1) may, virtue of subsection (3) modify or repeal any of the provisions of Part 10.

510.     Subsection (4) provides that any reference to Part 10 of the Housing Act 1985 includes a reference to that Part as amended, and that an order under section 216 may modify either an Act or an earlier order.

Section 217: Energy efficiency of residential accommodation: England

511.     Section 217 imposes a duty on the Secretary of State to take all reasonable steps to ensure that by 2010 the general level of energy efficiency of residential accommodation in England has increased by at least 20%. The definition of residential accommodation is that contained in the Home Energy Conservation Act 1995. Subsection (2) clarifies that this duty does not affect the duty to designate an aim under the Sustainable Energy Act 2003.

Section 218: Amendments relating to registered social landlords

512.     Section 218 introduces Schedule 11 which amends previous legislation under which the relevant authority (the Housing Corporation in England and the National Assembly for Wales in Wales) is allowed to register and regulate Registered Social Landlords.

Section 219: Disclosure of information to registered social landlords for the purposes of section 1 of the Crime and Disorder Act 1988

513.     Section 219 amends section 115 of the Crime and Disorder Act 1998 (the 1998 Act) to allow registered social landlords to receive information where the disclosure is necessary or expedient for the purposes of any provision of the 1998 Act. The main effect of this is to allow them to receive information from other bodies to support their applications for anti-social behaviour orders under section 1 of the 1998 Act.

Section 220: Additional power to give grants for social housing

514.     Section 220 inserts a new section 27A into the Housing Act 1996 thereby extending the powers of the relevant authority (the Housing Corporation in respect of England, and the National Assembly for Wales in respect of Wales) to allow it to give grants to persons that are not registered social landlords (RSL). The Interpretation Act 1978 defines "persons" as including a body of persons corporate or unincorporate.

515.     Grants may be given under this new power for the purposes set out in subsection (2), which are essentially the same social housing purposes for which social housing grant is currently provided to RSLs.

516.     Subsection (3) provides the Secretary of State with an order-making power to make any provisions in connection with the making of grants considered necessary, in particular such an order may define any equity percentage arrangements, specify or define the bodies from whom prospective purchasers may obtain mortgages, and to establish the priority of such mortgages. An order under subsection (3) will be subject to negative resolution.

517.     The grant under the new section 27A may be given subject to conditions and, in relation to any grant given by the Housing Corporation, subsections (3) and (5) allow the Secretary of State to prescribe, by order, conditions which must be imposed or matters about which the Housing Corporation must impose conditions, and any effects such conditions must achieve.

518.     Where such conditions are prescribed by the Secretary of State, the Housing Corporation is under a duty impose those conditions on any grant it makes, (see subsection (7)(a)) and is prevented from imposing conditions itself which conflict with such prescribed conditions, (see subsection (7)(b)).

519.     Subsection (6) places a duty on the relevant authority to specify the procedure to be followed for applications for grants; the circumstances in which grants will be payable; the method for calculating grant and any limitations on its amount; and, the manner in which grants will be paid.

520.     The relevant authority will have the power under subsection (9) to impose conditions requiring a sum it has determined to be paid to it by the grant recipient in specified circumstances, with or without interest.

521.     Section 220 also inserts a new section 27B, which deals with what happens where a property built using grant provided under section 27A is transferred either to another non-RSL, or is transferred to an RSL.

522.     This new section provides that, whenever a property for which grant is payable under section 27A is transferred to another non-RSL, the grant is treated as if it were payable to that other non-RSL. In the event of such a transfer the new section ensures that any conditions applied to the grant are transferred to the transferee where either the whole or part of the grant has been paid.

523.     This new section also provides that, where a non-RSL transfers grant-funded property to an RSL, the grant is treated as if it had been given to the RSL under section 18 of the Housing Act 1996. This means that it will attract the grant conditions which would usually be imposed if the grant had been given under section 18.

524.     For the purpose of new section 27B a property is transferred when it vests in or is leased for a term of years to, or reverts to, the transferee.

Section 221: Extension of the Right to Acquire

525.     Section 221 inserts a new section 16A into the Housing Act 1996. This new section gives tenants of properties funded through section 27A grant a right to acquire their home equivalent to the right enjoyed by tenants of RSLs under section 16 of the Housing Act 1996.

526.     New section 16A applies section 16 of the 1996 Act, with modifications, in relation to dwellings funded wholly or in part by section 27A grant. Where grant is given under section 27A the Housing Corporation must notify the grant recipient that any dwelling funded under section 27A could be subject to a right to acquire, (see subsection (3)). Subsection (4) of the new section provides that a dwelling should be regarded as having remained within the social rented sector if it has been continuously used by the grant recipient, or a person treated as the grant recipient under section 27B, in accordance with the purposes for which the grant was given.

Section 222: Rights of pre-emption in connection with assured tenancies

527.     Section 222 enables landlords of shared ownership properties to include rights of first refusal in their shared ownership leases in order to help with the retention of affordable housing units.

528.     Shared ownership is a part buy/part rent scheme, intended to help those on a low income into home ownership. Applicants buy a share of a property (typically between 25% to 75%) and pay rent to a housing association on the remaining share. The purchaser is granted a long lease and becomes the sole legal owner of the property, but the landlord retains a share of the equity equal to the percentage of the purchase price that was unpaid (e.g. 50%, if the purchaser bought a 50% share). The scheme provides a means of buying a home in stages at a lower initial cost than purchasing a property outright. Shared owners may, if they wish, purchase further shares in the property (a process known as "staircasing") when they can afford to do so and eventually own their home outright.

529.     Enabling the landlord to buy back the property, where the tenant wishes to dispose of it, would prevent the loss of affordable housing stock to the open market, particularly in rural areas where replacement is difficult, and would allow the housing association to re-sell the unit in more affordable tranches.

530.     Section 5 of the Housing Act 1988 would previously have operated so as to make a right of first refusal unenforceable. Shared ownership leases are generally assured tenancies, as because of the rental element they are not long leases at low rent.

531.     Section 222, by excluding rights of first refusal from section 5 of the Housing Act 1988, will allow landlords to insert and enforce rights of first refusal in shared ownership leases to assist with the retention of affordable housing units. If included in the lease, a right of first refusal will simply require the shared owner to offer the property back to the original landlord. There will be no obligation on the landlord to accept.

Section 223: Allocation of housing accommodation by local authorities

532.     Local housing authorities are required to have an allocation scheme to determine priorities and the procedure to be followed when allocating housing accommodation. In framing their allocation scheme, local housing authorities must ensure that "reasonable preference" is given to certain categories of people. Section 167(2) (d) of the Housing Act 1996 provides that reasonable preference for an allocation is given to people who need to move on "medical or welfare grounds".

533.     Section 223 amends section 167(2)(d) of the Housing Act 1996 to make clear that "medical and welfare grounds" includes people who need to move on grounds relating to a disability.

Section 224: Disabled facilities grant: caravans

534.     Section 224 extends eligibility for Disabled Facilities Grant (DFG) to all those occupying caravans. DFG is a mandatory grant administered by local authorities under Part 1 of the Housing Grants, Construction and Regeneration Act 1996. It is available for adaptations that enable disabled occupants to live more independently in their homes.

535.     The Regulatory Reform (Housing Assistance)(England and Wales) Order 2002 made DFG available to disabled occupants of "qualifying park homes". However, the definition of qualifying park home excluded some groups of caravan occupants from eligibility, including the majority of Gypsies and Travellers. Section 224 rectifies this situation by replacing the term "qualifying park home" with the term "caravan", and the term "pitch" with the term "land", in each place they appear in the 1996 Act. It also inserts a definition of "caravan" in the 1996 Act. A caravan is defined by reference to the Caravan Sites and Control of Development Act 1960, which contains the standard definition of "caravan" used in various statutes dealing with caravans and caravan sites. The definition is that a caravan is a structure designed or adapted for human habitation that is capable of being moved. The section requires a local authority to be satisfied that the caravan was stationed on land in its area at the time the application was made.

536.     This amendment does not apply to applications for DFG made before the date on which the section comes into force.

Sections 225 & 226: Housing needs assessment

537.     Section 225 requires local housing authorities to review the accommodation needs of 'gypsies and travellers' in their district when carrying out reviews of housing needs under s.8 of the Housing Act 1985.

538.     Section 225(1) states that the gypsies and travellers who reside in an area (i.e. who currently live there), or who resort to an area (i.e. who pass through from time to time) will have their needs assessed.

539.     The development of local authority housing strategies is covered by s.87 of the Local Government Act 2003. Under that section, the Secretary of State or the National Assembly for Wales may require an LHA to prepare and supply them with a strategy in respect of some housing matter. It is anticipated that the Secretary of State and the National Assembly for Wales will require LHAs to prepare and supply a strategy under that section in respect of the meeting of the accommodation needs of gypsies and travellers in their district.

540.     Section 225(3) requires local authorities to take any such strategy into account when exercising their other functions. This can include functions relating to planning, education, social care etc as well as housing.

541.     Section 225(4) states that local authorities must take into account any guidance issued when carrying out needs assessments and preparing strategies.

542.     Section 225(5) also allows for regulations to be issued which define gypsies and travellers.

543.     Section 226 allows for the Secretary of State or the National Assembly for Wales to issue guidance on the carrying out of housing needs assessments and the preparation of strategies to meet those needs. It sets out the process by which guidance covering England must be laid before Parliament.

Section 227: Removal of duty on local housing authorities to send annual reports to tenants etc

544.     Section 227 removes section 167 from the Local Government and Housing Act 1989. This removes the statutory duty on local housing authorities to produce a report to tenants about its functions as a local housing authority.

Section 228: Social Housing Ombudsman for Wales (SHOW)

545.     Section 228 inserts a new subsection (7) after section 51(6) of the Housing Act 1996 to disapply section 51 of the Housing Act 1996 (schemes for the investigation of housing complaints) in relation to social landlords in Wales and then inserts new sections 51A, 51B and 51C. These sections, together with Schedule 12 (which inserts a new Schedule 2A into the Housing Act 1996), contain new provisions in respect of the office of the Social Housing Ombudsman for Wales ("the SHOW").

546.     New section 51A sets up the office of the Social Housing Ombudsman for Wales to investigate complaints made against social landlords in Wales. The person who is the Local Commissioner for Wales shall be the SHOW. Provision is made for designation of the office, where there is more than one Local Commissioner. If the person who is the SHOW ceases to be the Local Commissioner, he shall also cease to be the SHOW. The power to remove a Local Commissioner for Wales from office under the Local Government Act 1974 is extended to allow for his removal on the grounds of incapacity or misbehaviour in the office of SHOW. The SHOW, rather than the National Assembly for Wales ("the Assembly"), is to investigate complaints made against social landlords in Wales. Schedule 2A contains further provisions about the SHOW.

547.     New section 51B allows the Assembly to make provision by regulations about the investigation by the SHOW of complaints made about social landlords in Wales, in particular in respect of those matters outlined under section 51B(2)(a)-(h).

548.     New section 51C defines the meaning of 'social landlord in Wales' and gives the Assembly the power to add to or amend the descriptions of landlords who are to be treated as social landlords (subject to consultation with such persons as the Assembly considers appropriate), and defines a "publicly-funded" dwelling.

549.     Subsection 3 inserts further provision about the SHOW in Schedule 12 to this Act into the Housing Act 1996 - as a new Schedule 2A.

PART 7

Section 229: Residential property tribunals

550.     Section 229 provides that the jurisdiction under this Act or any other enactment given to a RPT is to be exercised by a Rent Assessment Committee constituted under the Rent Act 1977 and when exercising that jurisdiction a committee is a RPT. The section also provides that the appropriate national authority can, by order approved by both Houses of Parliament, confer additional jurisdiction on the RPT and modify the Act or any other enactment accordingly.

Section 230: Powers and procedure of residential property tribunals

551.     Section 230 confers powers on the RPT to give directions in order to dispose of appeals and applications effectively so as to avoid the necessity for repeated appeals or applications in relation to the same matter. The section also gives effect to Schedule 13, which provides for regulations to govern tribunal procedures.

Section 231: Appeals from residential property tribunals

552.     Section 231 provides that an appeal against a decision of the RPT is to the Lands Tribunal. An Appeal can only be made with the permission of the RPT or the Lands Tribunal and only within the time specified in the Lands Tribunal rules.

Section 232: Register of licences and management orders

553.     Section 232 requires LHAs to keep an up to date register of all Part 2 or 3 licences, exemption notices, and management orders made under Chapters 1 or 2 of Part 4. The register must be available for public inspection and persons may take copies thereof (on payment of a fee).

Section 233: Approval of codes of practice with regard to the management of HMOs etc

554.     Section 233 allows the appropriate national authority to approve, or approve a modification to, codes of practice in relation to the management of HMOs or properties described in the Schedule 14 (buildings which are not HMOs other than for the purpose of Part 1). Non-compliance with a code is not in itself an offence. However, failure to comply with an approved code may be used in evidence in any proceedings before a court or a tribunal.

Section 234: Management regulations in respect of HMOs

555.     Section 234 provides that the appropriate national authority may make regulations with the aim of securing satisfactory standards of management in

HMOs of the description set out in the regulation. In particular the regulations may impose duties on the managers to repair and maintain the fabric of the building and facilities and equipment within it and upon the occupiers not to frustrate the manager in exercising his duties under the regulations. Failure to comply with the regulations is a criminal offence, subject to a level 5 (maximum £5,000) fine.

Section 235: Power to require documents to be produced

Section 236: Enforcement of powers to obtain information

556.     Section 235 allows an LHA to require the production of documentation that the authority might need to carry out its functions under Parts 1 to 4 of the Act and to investigate whether an offence committed under those Parts in relation to any premises. A notice requiring the production of documentation must specify or describe the documents, or class of documents, which must be produced and must specify a time and place at which they must be produced. The notice must explain the consequences of not complying with the notice. Once a document has been produced it may be copied by the person who receives it. Under subsection (6) document is defined as including information which is not in legible form, this might include for example documents held on computer in a zipped file. Only a "relevant person" can be required to produce documentation under this section and subsection (7) defines "relevant person" for the purpose of this section.

557.     Section 236 provides enforcement powers relating to section 235. Anyone failing to comply with a notice to produce a document commits an offence and is liable to a fine not exceeding level 5 on the statutory scale (currently £5,000). Anyone deliberately altering or destroying a requested document can be subject to an unlimited fine if tried in the Crown Court. Subsection (2) provides a defence of reasonable excuse for failing to comply with the notice.

Section 237: Use of information obtained for certain other statutory purposes

558.     Section 237 allows an LHA to use information that it has obtained for housing benefit or council tax purposes in order to carry out its functions under Parts 1 to 4 of this Act. So, for example, if several claims for housing benefit are made from the same address, the LHA will be able to use information obtained for the purposes of administering the claims to investigate whether the property in question ought to have a licence under Part 2 of the Act. This information may also help the LHA to decide the actual number of occupants of a dwelling, in relation to hazards under Part 1, particularly those which could be exacerbated by over-occupation, such as hazards from fire.

Section238: False or misleading information

559.     Section 238 makes it an offence to knowingly or recklessly supply false or misleading information under Parts 1 to 4 or Part 7 of the Act, or to another person who will then use that information under Parts 1 to 4 or Part 7 of the Act. The maximum penalty on summary conviction is a fine not exceeding level 5 on the statutory scale (currently £5,000).

Section 239: Powers of entry

560.     Section 239 gives an LHA powers of access to properties in pursuance of its duties under Parts 1 to 4 and Part 7 of the Act. The power of entry is exercisable where an inspection is to take place under section 4, the premises to be inspected are the subject of an improvement notice or prohibition order or a management order under Part 4 of the Act is in force. The person exercising the power of entry must be authorised in writing and this authorisation should set out the purpose for which the entry is authorised. Before exercising the power of entry the person authorised to enter must give at least 24 hours notice to the owner or occupier of the premises that they intend to enter, however the power of entry may be exercised at any reasonable time, without giving prior notice if entry is required to ascertain whether an offence has been committed under sections 72, 95 or 233(3) of the Act. Permission under this section does not include a power to use force to obtain entry. This power of entry includes entry for the purpose of taking samples.

561.     Examples of when this power could be used are: to gain access to a property to ensure that a house in multiple occupation (HMO) is suitable for multiple occupation and reaches the prescribed standards set out in Part 2 of the Act; or when the LHA wished to establish whether the provisions of an improvement notice or prohibition order have been properly complied with.

562.     See section 243 for provisions as to which officers within a LHA are empowered to give authorisations under this section.

Section 240: Warrant to authorise entry

563.     Section 240 enables a Justice of the Peace to issue a warrant authorising entry to premises for the purposes of an inspection under section 4, an inspection to determine whether any functions under Parts 1 to 4 of Part 7 of the Act should be exercised, surveying or examining premises which are the subject of an improvement notice, a prohibition order or a management order under Part 4. A warrant should specify the purposes for which the entry is allowed. A warrant to authorise entry may only be granted when either entry under section 239 has been refused, or the property is empty and immediate access is necessary, or prior warning of entry is likely to negate the purpose of access. A power of entry under a warrant may include the power to enter by force if necessary.

Section 241: Penalty for obstruction

564.     Section 241 makes it a criminal offence to obstruct a representative of an LHA in carrying out the LHA's functions under Parts 1 to 4 and sections 239 and 240. The maximum penalty on summary conviction (conviction in the Magistrates' Court) is a fine not exceeding level 4 on the statutory scale (currently £2,500). Subsection (2) provides a defence of reasonable excuse for obstructing the representative.

Section 242: Additional notice requirements for protection of owners

565.     Section 242 allows the owner of a property to require notice from the LHA of any relevant action taken under Parts 1 to 4 of this Act relating to their property. This provision is intended to ensure that any owner who is not actually managing or controlling his property is kept informed.

Section 243: Authorisations for enforcement purposes etc

566.     Section 243 requires that a person exercising the powers set out in subsection (1), including the power to require the production of documents under section 235 and the power of entry under section 239, must be authorised by the appropriate officer of the local housing authority. Subsection (3) defines the appropriate officer as a person who is a deputy chief officer within the meaning of section 2 of the Local Government and Housing Act 1989 and whose duties consist of or include duties relating to the exercise of the relevant functions, or is an officer to whom such a person reports or is accountable.

Section 244: Power to prescribe forms

567.     Section 244 allows the appropriate national authority to prescribe the form of any notice, statement or document required under the Act.

Section 245: Power to dispense with notices

568.     Section 245 provides that the appropriate national authority may allow an LHA to dispense with the service of a notice if it is reasonable to do so. Before giving a dispensation, the appropriate national authority must have regard to the need to ensure as far as possible that the interests of any person are not prejudiced by the dispensation.