Housing and Regeneration Act 2008

Penalty E+W

226 Overview E+W

This group of sections allows the regulator to penalise failures on the part of [F1 private registered providers] by the imposition of fines.

Textual Amendments

F1 Words in s. 226 substituted (1.4.2010) by The Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010 (S.I. 2010/844), art. 1(2), Sch. 1 para. 58

Commencement Information

I1 S. 226 in force at 1.4.2010 by S.I. 2010/862, art. 2 (with Sch.)

227 Grounds for imposition E+W

(1) The regulator may require a [F2 private 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 [F3 117(1)(b)].

(7) Case 6 is where an offence under this Part has been committed by the registered provider.

[F4 (7A) Case 7 is where the registered provider has failed to comply with—

(a) section 23 of the Welfare Reform and Work Act 2016,

(b) regulations under section 27 of that Act, or

(c) Part 1 of Schedule 2 to that Act.]

(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.

Textual Amendments

F2 Words in s. 227(1) substituted (1.4.2010) by The Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010 (S.I. 2010/844), art. 1(2), Sch. 1 para. 59(2)

F3 Word in s. 227(6) substituted (1.4.2010) by The Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010 (S.I. 2010/844), art. 1(2), Sch. 1 para. 59(3)

F4 S. 227(7A) inserted (16.3.2016 for specified purposes, 1.4.2016 in so far as not already in force) by Welfare Reform and Work Act 2016 (c. 7), ss. 30(3), 36(5); S.I. 2016/394, reg. 4

Commencement Information

I2 S. 227 in force at 1.4.2010 by S.I. 2010/862, art. 2 (with Sch.)

228 Imposition E+W

(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.

Commencement Information

I3 S. 228(1)-(4) in force at 1.4.2010 by S.I. 2010/862, art. 2 (with Sch.)

I4 S. 228(5) in force at 1.4.2009 for specified purposes by S.I. 2009/803, art. 7(c)

I5 S. 228(5) in force at 1.4.2010 in so far as not already in force by S.I. 2010/862, art. 2 (with Sch.)

229 Amount E+W

(1) The amount of a penalty imposed on the ground specified in Case 6 of section 227 may not exceed the maximum amount [F5 (if any)] 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).

Textual Amendments

F5 Words in s. 229(1) inserted (12.3.2015) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 5 para. 14 (with reg. 5(1))

Commencement Information

I6 S. 229 in force at 1.4.2010 by S.I. 2010/862, art. 2 (with Sch.)

230 Warning E+W

(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—

F6 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F7 (aa) the Greater London Authority (if the pre-penalty warning is given to a registered provider who owns land in Greater London), 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.

Textual Amendments

F6 S. 230(2)(a) repealed (1.4.2012) by Localism Act 2011 (c. 20), s. 240(2), Sch. 16 para. 47, Sch. 25 Pt. 26; S.I. 2012/628, art. 6(i)(j) (with arts. 9 11 14 15 17)

F7 S. 230(2)(aa) inserted (1.4.2012) by Localism Act 2011 (c. 20), s. 240(2), Sch. 19 para. 59; S.I. 2012/628, art. 6(i) (with arts. 9 11 14 15 17)

Commencement Information

I7 S. 230 in force at 1.4.2010 by S.I. 2010/862, art. 2 (with Sch.)

231 Representations E+W

(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.

Commencement Information

I8 S. 231 in force at 1.4.2010 by S.I. 2010/862, art. 2 (with Sch.)

F8 232 Notifying HCA E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F8 S. 232 repealed (1.4.2012) by Localism Act 2011 (c. 20), s. 240(2), Sch. 16 para. 48, Sch. 25 Pt. 26; S.I. 2012/628, art. 6(i)(j) (with arts. 9 11 14 15 17)

[F9 232A Notifying the Greater London Authority E+W

If the regulator imposes a penalty on a registered provider who owns land in Greater London, it must send a copy of the penalty notice to the Greater London Authority.]

Textual Amendments

F9 S. 232A inserted (1.4.2012) by Localism Act 2011 (c. 20), s. 240(2), Sch. 19 para. 60; S.I. 2012/628, art. 6(i) (with arts. 9 11 14 15 17)

233 Destination E+W

(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.

Commencement Information

I9 S. 233 in force at 1.4.2010 by S.I. 2010/862, art. 2 (with Sch.)

234 Enforcement E+W

(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.

Commencement Information

I10 S. 234(1)(3)(5)(6) in force at 1.4.2010 by S.I. 2010/862, art. 2 (with Sch.)

I11 S. 234(2)(4) in force at 1.4.2009 for specified purposes by S.I. 2009/803, art. 7(d)

I12 S. 234(2)(4) in force at 1.4.2010 in so far as not already in force by S.I. 2010/862, art. 2 (with Sch.)

235 Appeal E+W

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.

Commencement Information

I13 S. 235 in force at 1.4.2010 by S.I. 2010/862, art. 2 (with Sch.)