C1Part 2Regulation of Social Housing
Chapter 7Enforcement powers
Management etc.
I1246Overview
This group of sections gives the regulator various powers in relation to the management and constitution of registered providers.
I2247Management tender
1
This section applies if the regulator is satisfied that—
a
a registered provider has failed to meet a standard F3applicable to it under section 193 or 194,
F39aa
a registered provider has failed to comply with—
i
section 23 of the Welfare Reform and Work Act 2016,
ii
regulations under section 27 of that Act, or
iii
Part 1 of Schedule 2 to that Act, or
b
the affairs of a registered provider have been mismanaged in relation to social housing.
2
The regulator may require the registered provider to implement a process specified by the regulator for the purpose of—
a
inviting persons to apply to undertake management functions of the registered provider, and
b
selecting from the applications and making an appointment.
3
A requirement may relate to—
a
the registered provider's affairs generally in so far as they relate to social housing, or
b
specified affairs relating to social housing.
4
A requirement must include—
a
provision about the constitution of a selection panel (which must include provision for ensuring representation of tenants' interests),
b
provision for ensuring best procurement practice F4(and consistent with any applicable procurement law), and
c
provision about the terms and conditions on which the manager is to be appointed (including provision about—
i
setting, monitoring and enforcing performance standards, and
ii
resources).
I3248Section 247: supplemental
1
Before acting under section 247(2) the regulator must give the registered provider a notice—
a
specifying grounds on which action might be taken under that section,
b
warning the provider that the regulator is considering action under that section, and
c
explaining the effect of this section.
2
The notice must specify a period during which the registered provider may make representations to the regulator.
3
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 notice.
4
The regulator must send a copy of a notice under subsection (1) to—
F19a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F20aa
the Greater London Authority (if the notice is given to a registered provider who owns land in Greater London),
F5b
the Secretary of State (if the notice is given to a local authority), and
c
any other persons the regulator thinks appropriate.
5
A notice under subsection (1) 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, action under section 247(2).
6
Notice under subsection (1) may be combined with notice under one or more of sections 230, 242, 250 and 252.
7
In imposing a requirement the regulator must have regard to views of—
a
relevant tenants,
b
the registered provider,
F21c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F22ca
the Greater London Authority (if the notice is given to a registered provider who owns land in Greater London),
F6d
the Secretary of State (if the registered provider is a local authority), and
e
if the regulator thinks it appropriate, any relevant local housing authority.
F78
If the regulator imposes a requirement it must send a copy—
F24 a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F23aa
in the case of a requirement imposed on a registered provider who owns land in Greater London, to the Greater London Authority, and
b
in the case of a requirement imposed on a local authority, to the Secretary of State.
9
A registered provider may appeal to the High Court against a requirement under section 247(2).
I4249Management transfer
1
This section applies if as a result of an inquiry under section 206 or an audit under section 210 F41or 210A the regulator is satisfied that—
a
the affairs of a registered provider have been mismanaged in relation to social housing, or
b
a transfer of certain of a registered provider's management functions would be likely to improve the management of some or all of its social housing.
2
The regulator may require the registered provider to transfer management functions to a specified person.
3
A requirement to transfer management functions may be imposed only with the Secretary of State's consent (both as to the transfer and the terms).
4
A requirement may relate to—
a
the registered provider's affairs generally in so far as they relate to social housing, or
b
specified affairs relating to social housing.
5
Transfer shall be on terms and conditions (including as to remuneration) specified in, or determined in accordance with, the requirement.
6
A transferee manager shall have—
a
any power specified in the requirement, and
b
any other power in relation to the registered provider's affairs required by the manager for the purposes specified in the requirement (including the power to enter into agreements and take other action on behalf of the registered provider).
I5250Section 249: supplemental
1
Before acting under section 249(2) the regulator must give the registered provider a notice—
a
specifying grounds on which action might be taken under that section,
b
warning the provider that the regulator is considering action under that section, and
c
explaining the effect of this section.
2
The notice must specify a period during which the registered provider may make representations to the regulator.
3
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 notice.
4
The regulator must send a copy of a notice under subsection (1) to—
F25a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F26aa
in the case of a notice given to a registered provider who owns land in Greater London, the Greater London Authority,
F8b
in the case of a notice given to a local authority, the Secretary of State, and
c
any other persons the regulator thinks appropriate (having regard, in particular, to any person who provided information as a result of which the notice is given).
5
A notice under subsection (1) must—
a
refer to section 125, and
b
indicate whether or to what extent the regulator would accept a voluntary undertaking under that section instead of, or in mitigation of, action under section 249(2).
6
Notice under subsection (1) may be combined with notice under one or more of sections 230, 242, 248 and 252.
7
In imposing a requirement the regulator must have regard to views of—
a
relevant tenants,
b
the registered provider,
F27c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F28ca
if the requirement would be imposed on a registered provider who owns land in Greater London, the Greater London Authority,
F9d
if the requirement would be imposed on a local authority, the Secretary of State, and
e
if the regulator thinks it appropriate, any relevant local housing authority.
F108
If the regulator imposes a requirement it must send a copy—
F30 a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F29aa
in the case of a requirement imposed on a registered provider who owns land in Greater London, to the Greater London Authority, and
b
in the case of a requirement imposed on a local authority, to the Secretary of State.
9
A registered provider may appeal to the High Court against a requirement under section 249(2).
250AF1Sections 247 and 249: local authorities
1
This section makes further provision about the application of sections 247 and 249 in a case where the registered provider is a local authority.
2
The regulator may act under those sections even if the local authority already has a management agreement in place.
3
But while a section 247 or 249 arrangement is in force, the local authority may not give effect to a management agreement as respects functions of the authority which are the subject of the arrangement.
4
Any duty the local authority may have to consult with respect to the exercise of its management functions (for example, a duty arising by virtue of section 27BA of the Housing Act 1985) does not apply so far as it is acting pursuant to a requirement imposed on it under section 247 or 249.
5
A section 247 or 249 arrangement—
a
is not to be considered a management agreement, but
b
subsections (13) and (15) of section 27 of the Housing Act 1985 apply to it as they apply to a management agreement.
6
In this section—
“management agreement” has the meaning given by section 27(2)(a) and 27B(4) of the Housing Act 1985;
“section 247 or 249 arrangement” means an arrangement which is entered into pursuant to a requirement imposed on a local authority under section 247 or 249 and by which functions of the authority are to be exercised by a manager on its behalf.
I6251Appointment of manager F13of private registered provider
1
This section applies if the regulator is satisfied that—
a
a F11private registered provider has failed to meet a standard under section 193 or 194,
F40aa
a private registered provider has failed to comply with—
i
section 23 of the Welfare Reform and Work Act 2016,
ii
regulations under section 27 of that Act, or
iii
Part 1 of Schedule 2 to that Act, or
b
the affairs of a F12private registered provider have been mismanaged in relation to social housing.
2
The regulator may—
a
appoint an individual as a manager of the registered provider, or
b
require the registered provider to appoint an individual as a manager.
3
An appointment or requirement may relate to a manager—
a
of the registered provider's affairs generally in so far as they relate to social housing, or
b
of specified affairs relating to social housing.
4
Appointment shall be on terms and conditions (including as to remuneration) specified in, or determined in accordance with, the appointment or requirement.
5
A manager shall have—
a
any power specified in the appointment or requirement, and
b
any other power in relation to the registered provider's affairs required by the manager for the purposes specified in the appointment or requirement (including the power to enter into agreements and take other action on behalf of the registered provider).
I7252Section 251: supplemental
1
Before acting under section 251(2) the regulator must give the registered provider a notice—
a
specifying grounds on which action might be taken under that section,
b
warning the provider that the regulator is considering action under that section, and
c
explaining the effect of this section.
2
The notice must specify a period during which the registered provider may make representations to the regulator.
3
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 notice.
4
The regulator must send a copy of a notice under subsection (1) to—
F32a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F31aa
the Greater London Authority (if the notice is given to a registered provider who owns land in Greater London), and
b
any other persons it thinks appropriate (having regard, in particular, to any person who provided information as a result of which the notice is given).
5
A notice under subsection (1) 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, action under section 251(2).
6
Notice under subsection (1) may be combined with notice under one or more of sections 230, 242, 248 and 250.
F337
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F347A
The regulator must notify the Greater London Authority of an appointment or requirement under section 251(2) in respect of a registered provider who owns land in Greater London.
8
The regulator may require a manager to report to the regulator on the affairs specified in the appointment or requirement under section 251(3).
9
A F14private registered provider may appeal to the High Court against an appointment or requirement under section 251(2).
252AF2Appointment of advisers to local authorities
1
This section applies to a registered provider which is a local authority.
2
The power in subsection (3) is exercisable if the regulator thinks—
a
that it is necessary to exercise it for the proper management of the authority’s affairs so far as they relate to the provision of social housing (its “social housing affairs”), or
b
that it is desirable to exercise it in the interests of securing better services for the authority’s tenants.
3
The regulator may—
a
appoint one or more advisers to assist the authority in relation to its social housing affairs (or a particular aspect of those affairs), or
b
require the authority to appoint one or more advisers for that purpose.
4
Appointment shall be on terms and conditions (including as to remuneration) specified in, or determined in accordance with, the appointment or requirement.
5
A requirement under subsection (3)(b) may specify a process which the authority is required to implement for selecting and appointing advisers.
6
The authority must cooperate with any advisers appointed by virtue of this section.
I8253Transfer of land F15by private registered provider
1
This section applies if as a result of an inquiry under section 206 or an audit under section 210 the regulator is satisfied that—
a
the affairs of a F16private registered provider have been mismanaged in relation to social housing, or
b
a transfer of land by a F17private registered provider would be likely to improve the management of the land.
2
The regulator may require the registered provider to transfer specified land—
a
to the regulator, or
b
to another specified F18private registered provider.
3
A requirement may be imposed on a profit-making registered provider only in relation to its social housing and associated land.
4
For the purposes of subsection (3) land is associated with social housing if the regulator thinks that it is used in connection with the social housing or its management.
5
A requirement may not be imposed on a non-profit registered provider requiring it to transfer land to a profit-making registered provider.
6
A requirement may not be imposed on a registered charity.
7
A requirement may be imposed on a charity which is not registered (C1), but only for transfer to another charity (C2) whose objects the regulator thinks are similar to those of C1.
I9254Section 253: supplemental
1
A transfer under section 253 shall be on terms specified in, or determined in accordance with, the requirement.
2
The price shall be not less than an amount certified by the district valuer as the amount the property would fetch if sold by a willing seller to another registered provider.
3
The terms shall include provision as to the payment of any debts or liabilities in respect of the land (whether or not secured on it).
4
A requirement to transfer land may be imposed only with the Secretary of State's consent (both as to the transfer and the terms).
5
Where land is transferred to the regulator under section 253(2)(a)—
a
the regulator may dispose of it only to a registered provider, and
b
if it is transferred by a non-profit registered provider, the regulator may dispose of it only to a non-profit registered provider.
I10255Amalgamation
1
This section applies if as a result of an inquiry under section 206 or an audit under section 210 the regulator is satisfied that—
a
the affairs of a non-profit registered provider which is F36a registered society have been mismanaged in relation to social housing, or
2
The regulator may make and execute on behalf of the society an instrument providing for the amalgamation of the society with another F37registered society.
3
The regulator may act under subsection (2) only with the Secretary of State's consent.
4
An instrument providing for the amalgamation of a society (“S1”) with another has the same effect as a resolution by S1 under F38section 109 of the Co-operative and Community Benefit Societies Act 2014 (amalgamation of societies by special resolution).
5
A copy of an instrument shall be sent to and registered by the F35Financial Conduct Authority.
6
An instrument does not take effect until the copy is registered.
7
The copy must be sent for registration during the period of 14 days beginning with the date of execution; but a copy registered after that period is valid.
8
Any body created by virtue of an amalgamation—
a
must be registered by the regulator and designated as a non-profit organisation, and
b
pending registration shall be treated as registered and designated as a non-profit organisation.
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)