C1Part 2Regulation of Social Housing
Chapter 7Enforcement powers
Penalty
I3226Overview
I4227Grounds for imposition
1
The regulator may require a F2F19... 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
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 F3117(1)(b).
7
Case 6 is where an offence under this Part has been committed by the registered provider.
F127A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F177B
Case 8 is where—
a
the registered provider—
i
does not have a health and safety lead designated under section 126A, or
ii
has failed to meet a requirement under section 126C, or
b
the functions of the health and safety lead are not being carried out.
F117C
Case 9 is where the registered provider has failed to comply with directions or a request under section 198C.
F187D
Case 10 is where the registered provider has failed to comply with a performance improvement plan notice.
7E
Case 11 is where the registered provider has failed to comply with the duty in section 218B(4) (duty to provide copy of performance improvement plan).
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.
228Imposition
I51
A penalty is imposed by the regulator giving notice (a “penalty notice”) to the registered provider.
I52
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.
I53
The notice may require the registered provider to publish information about the penalty in a specified manner.
I54
The notice must explain the effect of sections 234(1), (3) and (6) and 235.
I1I65
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.
I7229Amount
1
The amount of a penalty imposed on the ground specified in Case 6 of section 227 may not exceed the maximum amount F10(if any) of fine that a magistrates' court could impose for the relevant offence.
2
F223
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I8230Warning
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—
F5a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F9za
the HCA,
F6aa
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.
I9231Representations
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.
231AF8Notifying the HCA
If the regulator imposes a penalty on a registered provider it must send a copy of the penalty notice to the HCA.
F7232Notifying HCA
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
232AF4Notifying the Greater London Authority
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.
I10233Destination
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.
234Enforcement
I111
A penalty shall be treated as a debt owed to the regulator.
I2I122
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.
I113
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).
I2I124
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.
I115
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)).
I116
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.
I13235Appeal
F151
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.
F142
An appeal under this section must be brought within the period of 28 days beginning with the day on which the registered provider is given the penalty notice.
3
The requirement to pay the penalty is suspended during the appeal period.
4
Regulations under section 234(2) may not authorise the regulator to—
a
charge interest in respect of the appeal period, or
b
impose additional penalties during that period.
5
The “appeal period” means—
a
where an appeal is brought, the period beginning with the day on which the penalty notice is given and ending with the day on which the appeal is finally determined or withdrawn, and
b
otherwise, the period during which an appeal could be brought.
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)