C1Part 2Regulation of Social Housing
Chapter 6Regulatory powers
192I27Overview
This Chapter—
a
allows the regulator to set standards for the provision of social housing (sections 193 to F12198B),
b
gives the regulator powers to monitor compliance (sections 199 to 210),
c
gives the regulator a degree of control over the governance of non-profit registered providers (sections 211 to 214),
d
requires the regulator to give guidance about F29the submission of information and opinions relating to registered providers and about the use of its powers under this Chapter and Chapter 7 (sections 215 and 216), and
e
allows the regulator to arrange for the accreditation of managers of social housing (section 217).
Standards
193I5F26Standards relating to consumer matters
1
The regulator may set standards for registered providers as to the nature, extent and quality of accommodation, facilities or services provided by them in connection with social housing.
2
Standards under subsection (1) may, in particular, require registered providers to comply with specified rules about—
a
criteria for allocating accommodation,
b
terms of tenancies,
F14c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
maintenance,
e
procedures for addressing complaints by tenants against landlords,
f
methods for consulting and informing tenants,
g
methods of enabling tenants to influence or control the management of their accommodation and environment,
F50ga
methods of assisting tenants to exchange tenancies,
h
policies and procedures required by section 218A of the Housing Act 1996 (c. 52) in connection with anti-social behaviour,
i
landlords' contribution to the environmental, social and economic well-being of the areas in which their property is situated, and
j
estate management.
3
In setting standards the regulator shall have regard to the desirability of registered providers being free to choose how to provide services and conduct business.
194I1F45Standards relating to economic matters
1
F281A
Standards under subsection (1) may, in particular, require private registered providers to comply with specified rules about—
a
the management of their financial and other affairs, and
b
their efficiency in carrying on their financial and other affairs.
2
In respect of profit-making registered providers, standards may be made in relation to the management of their affairs only so far as relating to the provision of social housing.
F132A
The regulator may set standards for registered providers requiring them to comply with specified rules about their levels of rent (and the rules may, in particular, include provision for minimum or maximum levels of rent or levels of increase or decrease of rent).
3
In setting standards the regulator shall have regard to the desirability of registered providers being free to choose how to provide services and conduct business.
195I26Code of practice
1
The regulator may issue a code of practice which—
a
relates to a matter addressed by a standard F10under section 194, and
b
amplifies the standard.
2
In considering whether standards F35under that section have been met the regulator may have regard to a code of practice.
3
The regulator may revise or withdraw a code of practice.
4
The regulator shall make arrangements for bringing a code of practice to the attention of registered providers.
196I17Consultation
1
Before setting standards, or issuing, revising or withdrawing a code of practice, the regulator shall consult the following or ensure that they have been consulted—
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 secured creditors of registered providers,
F19ba
any body for the time being nominated under section 278A,
c
one or moreF34other bodies appearing to it to represent the interests of tenants of social housing,
d
the Audit Commission for Local Authorities and the National Health Service in England,
e
one or more bodies appearing to it to represent the interests of local housing authorities,
F48ea
the Greater London Authority,
F40f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., and
g
the Secretary of State.
2
Before setting a standard which would apply to charities, or issuing, revising or withdrawing a code of practice which applies or would apply to charities, the regulator must consult the Charity Commission.
197I20Direction by Secretary of State
1
The Secretary of State may direct the regulator—
a
to set a standard under section 193 F8or 194,
b
about the content of standards under section 193 F4or 194, or
c
to have regard to specified objectives when setting standards under section 193 or 194.
2
The Secretary of State may give a direction under subsection (1)(a) or (b) only if it relates, in the Secretary of State's opinion, to—
a
quality of accommodation,
F41aa
tenure,
b
rent, F11...
c
involvement by tenants in the management by registered providers of accommodation F38, or
d
methods of assisting tenants to exchange tenancies.
3
In deciding whether to give a direction the Secretary of State shall, in particular, have regard to the regulator's fundamental objectives.
4
Before giving a direction the Secretary of State must consult—
a
the regulator,
F25aa
the Greater London Authority,
F42b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
the Audit Commission for Local Authorities and the National Health Service in England,
d
one or more bodies appearing to the Secretary of State to represent the interests of local housing authorities,
F55da
any body for the time being nominated under section 278A,
e
one or moreF22other bodies appearing to the Secretary of State to represent the interests of tenants of social housing, and
f
one or more bodies appearing to the Secretary of State to represent the interests of registered providers.
5
Before giving a direction about a standard which would apply to charities the Secretary of State must consult the Charity Commission.
6
A direction may disapply the requirement to consult under section 196 in relation to specified matters.
7
The regulator shall comply with any direction.
8
The Secretary of State shall publish—
a
each proposed direction that is the subject of a consultation,
b
each response to a consultation, and
c
each direction.
198Supplemental
F161
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2I14
The regulator shall make arrangements for bringing standards to the attention of registered providers.
3I14
The regulator may revise or withdraw standards; and section 196 applies to revising or withdrawing standards as to setting standards.
4I14
Standards may be expressed by reference to documents prepared by others.
5I14
Standards—
a
may make provision generally or only in relation to specified cases, circumstances or areas, and
b
may make different provision for different cases, circumstances or areas.
198AF53Failure to meet standard under section 193
1
Failure by a registered provider to meet a standard under section 193 (standards relating to consumers matters) is a ground for exercising a power in this Chapter or Chapter 7.
2
But a power to which this subsection applies may be exercised on that ground only if the regulator thinks there are reasonable grounds to suspect that—
a
the failure has resulted in a serious detriment to the registered provider's tenants or potential tenants, or
b
there is a significant risk that, if no action is taken by the regulator, the failure will result in a serious detriment to the registered provider's tenants or potential tenants.
3
Subsection (2) applies to the powers conferred by any of the following—
a
section 199 (surveys);
b
section 201 (inspections);
c
section 206 (inquiries);
d
section 220 (enforcement notices);
e
section 227 (penalties);
f
section 237 (compensation);
g
section 247 (management tender);
h
section 251 (appointment of manager).
4
The risk that, if no action is taken by a registered provider or the regulator, the registered provider will fail to meet a standard under section 193 is a ground for exercising a power in this Chapter.
5
But a power in this Chapter may be exercised on that ground only if the regulator thinks there are reasonable grounds to suspect that, if the failure occurs—
a
the failure will result in a serious detriment to the registered provider's tenants or potential tenants, or
b
there will be a significant risk that, if no action is taken by the regulator, the failure will result in a serious detriment to the registered provider's tenants or potential tenants.
6
In considering whether to exercise a power within subsection (1) or (4) on the ground mentioned in that subsection, the regulator must have regard to any information it has received from any of the following—
a
the Commission for Local Administration in England;
b
a housing ombudsman appointed in accordance with a scheme approved under Schedule 2 to the Housing Act 1996;
c
any body appearing to the regulator to represent the interests of tenants of social housing in England;
d
a county council in England, a district council, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly or a parish council;
e
a member of any of the bodies listed in paragraph (d);
f
the Greater London Authority;
g
a Member of Parliament;
h
a fire and rescue authority under the Fire and Rescue Services Act 2004;
i
the Health and Safety Executive;
j
the Secretary of State.
198BFailure to meet standard under section 194
1
Failure by a registered provider to meet a standard under section 194 (standards relating to economic matters) is a ground for exercising a power in this Chapter or Chapter 7 (if the power is otherwise exercisable in relation to a registered provider of that kind).
2
The risk that, if no action is taken by a registered provider or the regulator, the registered provider will fail to meet a standard under section 194 is a ground for exercising a power in this Chapter.
Monitoring
I19199Survey
1
This section applies where the regulator suspects that a registered provider may be failing to maintain premises in accordance with standards under section 193.
2
The regulator may arrange for a survey of the condition of the premises by an authorised person.
3
In subsection (2) “authorised person” means a member of the regulator's staff, or another person, authorised in writing by the regulator for the purposes of this section.
4
An authorised person may enter the premises at any reasonable time and carry out the survey.
5
Before carrying out the survey an authorised person must give the registered provider at least 28 days' notice.
6
A registered provider who receives notice of a survey must give each occupier of the premises at least 7 days' notice.
7
After carrying out a survey an authorised person must produce a written report.
8
The regulator must give the registered provider a copy of the report.
I6200Survey: supplemental
1
An authorised person carrying out a survey, or seeking to enter premises in order to carry out a survey, must produce a copy of the authorisation on request by an occupier.
2
The regulator may require the registered provider to pay some or all of the costs of the survey and report.
3
A registered provider who fails without reasonable excuse to comply with section 199(6) commits an offence.
4
A registered provider, or an officer of a registered provider, who obstructs an authorised person in exercising a power under section 199 commits an offence.
5
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
6
Proceedings for an offence under this section may be brought only by or with the consent of—
a
the regulator, or
b
the Director of Public Prosecutions.
I22201Inspections
1
The regulator may arrange for a person to inspect—
a
a registered provider's performance of its functions in relation to the provision of social housing, or
b
the financial or other affairs of a registered provider.
F212
The person may be a member of the regulator's staff if the Secretary of State consents.
2A
Consent under subsection (2) may be general or specific.
F543
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
The regulator may direct a person carrying out an inspection to discontinue it.
5
An inspection may be general or specific.
F56
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F377
Arrangements for a person other than a member of the regulator's staff to carry out an inspection may include provision about payments.
F277A
An inspection carried out by a person F17other than a member of the regulator's staff under this section is taken for the purposes of paragraph 5 of Schedule 2A to the Audit Commission Act 1998 (inspections by other inspectors of organisations within Audit Commission’s remit) to be carried out by the regulator.
F568
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
202Inspections: supplemental
I291
After carrying out an inspection under section 201 the person carrying out the inspection must produce a written report.
I292
The regulator—
a
must give the registered provider a copy of the report, and
b
may publish the report and related information.
I293
The person who carried out the inspection may publish the report and related information (whether or not the regulator has done so).
I23I114
The Secretary of State may by order authorise the regulator to charge fees for inspections.
I295
An inspected registered provider must pay any fee charged.
I23I116
Before making an order the Secretary of State shall consult—
a
the regulator,
b
one or more bodies appearing to the Secretary of State to represent the interests of registered providers,
F20c
..., and
d
such other persons as the Secretary of State thinks appropriate.
I23I117
The regulator shall prescribe a scale of fees for inspections, having consulted—
a
the Secretary of State,F46and
b
one or more bodies appearing to the regulator to represent the interests of registered providers, F49...
F49c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F478
The functions of billing for and receiving the payment of fees under this section are exercisable by the HCA rather than by the HCA acting through its Regulation Committee.
I9203Inspector's powers
1
An inspector may by notice require a person to provide specified documents or information.
2
The power under subsection (1) may be exercised only in relation to documents and information of a kind in respect of which the regulator can impose a requirement under section 107.
3
Sections 107(3) to (7) and 108 apply for the purposes of subsection (1) (with any necessary modifications).
4
An inspector may at any reasonable time—
a
enter premises occupied by the registered provider which is being inspected, and
b
inspect, copy or take away documents found there.
5
The reference to documents found on premises includes—
a
documents stored on computers or electronic storage devices on the premises, and
b
documents stored elsewhere which can be accessed by computers on the premises.
6
The power to inspect documents includes the power to inspect any computer or electronic storage device on which they have been created or stored.
7
An inspector may require any person on the premises to provide such facilities or assistance as the inspector reasonably requests.
8
For the purposes of subsections (5) and (6) an inspector may require any person having charge of a computer to provide such assistance as the inspector reasonably requests.
9
It is an offence for a person without reasonable excuse to obstruct an inspector exercising the powers conferred by subsections (4) to (8).
10
A person guilty of an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
11
Proceedings for an offence may be brought only by or with the consent of—
a
the regulator, or
b
the Director of Public Prosecutions.
F1812
In this section “ inspector ” means a person authorised in writing by the regulator to exercise the powers under this section for the purposes of an inspection under section 201.
F30204Performance information
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3205Publication of performance information
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I8206Inquiry
1
If the regulator suspects that the affairs of a registered provider may have been mismanaged, the regulator may hold an inquiry.
2
The regulator shall appoint one or more individuals to conduct the inquiry.
3
An individual is eligible for appointment only if the individual is independent of the regulator.
4
Individuals are independent of the regulator if they and the members of their family—
a
are not members, employees or consultants of the regulator, and
b
have not been members or employees of the regulator within the previous five years.
5
“Consultant” means an individual providing services to the regulator otherwise than by virtue of employment with the regulator or an appointment under this section.
I4207Inquiry: supplemental
1
The individual or individuals conducting an inquiry (“the inquirer”) shall determine its procedure.
F12
The inquirer may consider the affairs of the following categories of registered provider only so far as relating to social housing—
a
profit-making organisations;
b
local authorities.
3
The inquirer may consider affairs of a body which at the material time was a subsidiary or associate of the registered provider.
4
The inquirer may make interim reports.
5
The inquirer shall make a final report on matters specified by the regulator.
6
The regulator may arrange for the publication of all or part of an interim or final report.
7
A local authority may contribute to the regulator's expenses in connection with an inquiry.
I15208Inquiry: evidence
1
The inquirer may by notice require a person to provide specified documents or information.
2
The notice may, in particular, require evidence to be given on oath (and the inquirer may administer oaths for that purpose).
3
The power under subsection (1) may be exercised only in relation to documents and information of a kind in respect of which the regulator can impose a requirement under section 107.
4
Sections 107(3) to (7) and 108 apply for the purposes of this section (with any necessary modifications).
I12209Inquiry: charities
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.
I7210Extraordinary audit
1
Where an inquiry in respect of F57a private 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).
210AF15Extraordinary report: local authorities
1
Where an inquiry in respect of a local authority is being held, or has been held, under section 206, the Audit Commission must, at the request of the regulator, report to the regulator on the accounts and balance sheet of the local authority, so far as they relate to the provision of social housing.
2
A report under this section may include in particular—
a
any matter that may be included in a report during or on completion of an audit of the local authority’s accounts under Part 2 of the Audit Commission Act 1998, and
b
copies of or extracts from any such report that has already been made.
3
The Audit Commission may arrange for a report under this section to be prepared by an auditor (within the meaning of the Audit Commission Act 1998).
4
The local authority shall pay the Audit Commission’s costs of preparing the report.
5
“The Audit Commission” means the Audit Commission for Local Authorities and the National Health Service in England.
Management and constitution
I21211Non-profit providers only
This group of sections applies only to non-profit registered providers.
212F2Registered society: change of rules
I131
This section applies to F43a registered society.
2I18
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.
I133
An amendment of the rules which requires consent is effective only if the regulator has first consented.
I134
The regulator may not consent to an amendment which it thinks would turn the society into a profit-making organisation.
I135
The society must notify the regulator of an amendment of the rules which does not require consent.
I136
In relation to an amendment which requires consent the requirement in F52section 16(2) of the Co-operative and Community Benefit Societies Act 2014 (sending copies of amendment of rules to F51Financial Conduct Authority) is satisfied only if the copies are accompanied by a copy of the regulator's consent.
I137
The preceding provisions of this section shall be treated as if they formed part of that Act as well as of this Act.
8I18
The Secretary of State may by order amend the list in subsection (2).
I3213Charity: change of objects
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.
214Companies: change of articles
I241
This section applies to a registered company.
2I2
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.
I243
An amendment of the articles of association which requires consent is effective only if the regulator has first consented.
I244
The regulator may not consent to an amendment which it thinks would turn the company into a profit-making organisation.
I245
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.
I246
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.
7I2
The Secretary of State may by order amend the list in subsection (2).
Guidance
215Use of intervention powers
1I16
The regulator shall publish—
a
guidance about F39the submission of information 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.
2I16
Guidance under subsection (1)(a) must, in particular, specify F36how the regulator will deal with the submissions it receives.
F332A
Guidance under subsection (1)(b) must, in particular, specify how the regulator applies and intends to apply the tests in section 198A (use of certain powers in cases of failure or potential failure to comply with standards under section 193).
I283
The regulator shall have regard to guidance under this section.
216I10Consultation
Before giving guidance under section 215 the regulator must consult—
F6za
the Secretary of State,
a
one or more bodies appearing to it to represent the interests of registered providers,
F23aa
any body for the time being nominated under section 278A,
b
one or moreF32other bodies appearing to it to represent the interests of tenants,
F7ba
the Greater London Authority,
c
one or more bodies appearing to it to represent the interests of local housing authorities,
F31d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F9e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Managers of social housing
I25217Accreditation
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.
Pt. 2 modified (1.4.2012) by Localism Act 2011 (c. 20), s. 240(2), Sch. 16 para. 69(2); S.I. 2012/628, art. 6(i) (with arts. 911141517)