Monitoring and enforcement

28Surveys

(1)

The Housing and Regeneration Act 2008 is amended as follows.

(2)

In section 199 (survey)—

(a)

in subsection (3)—

(i)

for “subsection (2)” substitute “this section and in sections 199A to 200,”, and

(ii)

for “of this section” substitute “of the section concerned”;

(b)

omit subsections (4) to (6);

(c)

after subsection (8) insert—

“(9)

Arrangements for a person other than a member of the regulator’s staff to carry out a survey may include provision about payments.”

(3)

After section 199 insert—

“199ASurvey: power to enter without warrant

(1)

An authorised person may enter premises at any reasonable time, or times, to carry out a survey under section 199.

(2)

The power in subsection (1) may only be exercised if an authorised person has given at least 48 hours’ notice of the first exercise of the power—

(a)

to the registered provider, and

(b)

if the premises are occupied, to the occupier (or any one of the occupiers).

(3)

The requirement to give notice may be waived—

(a)

in the case of notice required by subsection (2)(a), by the registered provider, and

(b)

in the case of notice required by subsection (2)(b), by the occupier (or any one of the occupiers) of the premises.

(4)

Notice under subsection (2) may state that, if entry to the premises were to be refused, an authorised person would propose to apply for a warrant under section 199B.

(5)

Notice required by subsection (2)(b) may be given by fixing it to some conspicuous part of the premises.

(6)

An authorised person who under this section has entered, or who is seeking to enter, premises in order to carry out a survey must produce a copy of the authorisation mentioned in section 199(3) on request by an occupier.

(7)

An authorised person entering premises to carry out a survey may—

(a)

be accompanied by such other persons, and

(b)

take onto the premises such equipment or materials,

as the authorised person thinks necessary for the purposes of carrying out the survey.

(8)

Equipment or materials taken onto premises by virtue of subsection (7) may be left in a place on the premises until the survey has been carried out provided that—

(a)

leaving the equipment or the materials in that place does not significantly impair the ability of an occupier to use the premises, or

(b)

leaving the equipment or the materials on the premises is necessary for the purposes of carrying out the survey and it is not possible to leave it or them in a place that does not significantly impair the ability of an occupier to use the premises.

(9)

Where the premises include common parts of a building, references in subsection (8) to the ability of an occupier to use the premises include the ability of an occupier of a dwelling that has use of the common parts to use those parts or the dwelling.

(10)

In this section, “common parts”, in relation to a building, includes the structure and exterior of that building and any common facilities provided (whether or not in the building) for persons who occupy the building.

199BSurvey: power to enter with warrant

(1)

This section applies where a justice of the peace is satisfied, on sworn information in writing by an authorised person, that entry to premises specified in the information is reasonably required to carry out a survey under section 199.

(2)

The justice may issue a warrant authorising the authorised person who is named in it to enter the premises to carry out the survey where the justice is satisfied that—

(a)

entry to the premises has been sought under section 199A but has been refused,

(b)

the premises are unoccupied or that the occupier is temporarily absent, or

(c)

there are reasonable grounds to believe that the authorised person will not be able to obtain entry to the premises without a warrant.

(3)

A warrant under this section authorises the authorised person to enter the premises at any reasonable time, or times, using reasonable force if necessary.

(4)

A warrant under this section authorises an authorised person entering premises to take onto the premises such equipment or materials as the authorised person thinks necessary for the purposes of carrying out the survey.

(5)

Equipment or materials taken onto premises by virtue of subsection (4) may be left in a place on the premises until the survey has been carried out provided that—

(a)

leaving the equipment or the materials in that place does not significantly impair the ability of an occupier to use the premises, or

(b)

leaving the equipment or the materials on the premises is necessary for the purposes of carrying out the survey and it is not possible to leave it or them in a place that does not significantly impair the ability of an occupier to use the premises.

(6)

Where the premises include common parts of a building (as defined in section 199A), references in subsection (5) to the ability of an occupier to use the premises include the ability of an occupier of a dwelling that has use of the common parts to use those parts or the dwelling.

(7)

A warrant under this section may authorise persons (“accompanying persons”) to accompany the authorised person.

(8)

Accompanying persons—

(a)

have the same powers as the authorised person in respect of execution of the warrant, but

(b)

must exercise those powers only in the company, and under the supervision, of the authorised person.

(9)

An authorised person who has entered, or who is seeking to enter, premises under a warrant under this section must produce on request by any person—

(a)

a copy of the warrant;

(b)

a copy of the authorisation mentioned in section 199(3).

(10)

A warrant under this section continues in force until the survey is carried out.

(11)

If the premises are unoccupied or the occupier is temporarily absent, the authorised person who has entered the premises under a warrant under this section must leave the premises as effectively secured against trespassers as the authorised person found them.”

(4)

In section 200 (survey: supplemental)—

(a)

omit subsection (1);

(b)

omit subsection (3);

(c)

for subsection (4) substitute—

“(4)

A registered provider, or an officer of a registered provider, commits an offence if the provider or officer obstructs an authorised person—

(a)

in exercising a power under section 199A, or

(b)

in exercising a power under section 199, where the authorised person has entered the premises to carry out the survey under the power in section 199A.”;

(d)

after subsection (4) insert—

“(4A)

A person commits an offence if the person obstructs an authorised person—

(a)

in exercising a power conferred by a warrant under section 199B, or

(b)

in exercising a power under section 199, where the authorised person has entered the premises to carry out a survey under a warrant under section 199B.”

29Inspection plan

(1)

The Housing and Regeneration Act 2008 is amended as follows.

(2)

After section 201 (inspections) insert—

“201AInspection plan

(1)

The regulator must make a plan as regards—

(a)

the descriptions of registered provider that should be subject to regular inspection under section 201,

(b)

the intervals at which regular inspections should be carried out under that section, and

(c)

the circumstances in which registered providers should be subject to inspections under that section other than regular inspections.

(2)

The plan may make different provision for different cases, circumstances or areas.

(3)

The regulator must take appropriate steps to implement the plan.

(4)

The regulator must—

(a)

keep the plan under review,

(b)

when appropriate, revise or replace the plan, and

(c)

publish the plan and any revised or replacement plan.”

(3)

In section 215 (use of intervention powers), after subsection (1) insert—

“(1A)

In determining whether the regulator has complied with subsection (1) in relation to its power to arrange for inspections under section 201(1), a plan published under section 201A may be taken into account.”

30Action after inspection

(1)

The Housing and Regeneration Act 2008 is amended as follows.

(2)

In section 202 (inspections: supplemental), omit subsections (1) to (3).

(3)

In section 203(12) (definition of “inspector”), after “this section” insert “and section 203A”.

(4)

After section 203 insert—

“203AAction after inspection

(1)

After an inspection of a registered provider is carried out by an inspector under section 201, the inspector must produce—

(a)

a written summary of the inspector’s findings, and

(b)

a written report about any matters specified by the regulator.

(2)

The summary and any report must be in the form specified by the regulator.

(3)

The regulator may specify matters, or the form of a summary or report, for the purposes of inspections generally or for the purposes of a particular inspection or description of inspection.

(4)

The regulator must give the registered provider a copy of the summary of the inspector’s findings.

(5)

The regulator must also give the registered provider—

(a)

a copy of the inspector’s report, or

(b)

a notice confirming that no matters were specified for the purposes of subsection (1)(b).

(6)

The regulator may publish—

(a)

all or part of the summary of the inspector’s findings,

(b)

(where relevant) all or part of the inspector’s report, and

(c)

related information.”

31Performance improvement plans

(1)

The Housing and Regeneration Act 2008 is amended as follows.

(2)

After section 218 insert—

“Performance improvement plans

218APerformance improvement plan notice

(1)

The regulator may give a registered provider a notice (a “performance improvement plan notice”) if the regulator is satisfied that—

(a)

the registered provider has failed to meet a standard under section 193, 194, 194A or 194C,

(b)

there is a risk that, if no action is taken by the regulator or the registered provider, the registered provider will fail to meet a standard under section 193, 194, 194A or 194C,

(c)

the registered provider has failed to comply with directions or a request under section 198C,

(d)

the interests of the tenants of social housing of the registered provider require protection, or

(e)

the registered provider has given an undertaking under section 125 and failed to comply with it.

(2)

A performance improvement plan notice must—

(a)

specify on which of the grounds mentioned in subsection (1) it is given,

(b)

identify the issues which led the regulator to be satisfied of those grounds,

(c)

require the registered provider to prepare and submit to the regulator a plan (a “performance improvement plan”) setting out the action the provider will take to address the issues identified,

(d)

specify the date by which the performance improvement plan must be submitted to the regulator,

(e)

require the registered provider to publish a performance improvement plan if it is approved by the regulator and specify the manner of such publication, and

(f)

explain the effect of subsections (3) and (4) and sections 218B to 218D.

(3)

The regulator may withdraw a performance improvement plan notice by notice to the registered provider.

(4)

If a registered provider fails to comply with a performance improvement plan notice the regulator must consider exercising another power under this Chapter or Chapter 6.

218BPerformance improvement plans

(1)

The regulator must—

(a)

approve a performance improvement plan submitted in accordance with section 218A(2)(c) and (d), or

(b)

reject it, giving reasons for doing so.

(2)

A registered provider must implement in full a performance improvement plan that has been approved by the regulator.

(3)

If a performance improvement plan is rejected, the registered provider will be taken to have failed to comply with the performance improvement plan notice.

(4)

If a tenant of social housing of a registered provider makes a written request to the provider for a copy of the provider’s performance improvement plan which has been approved by the regulator, the registered provider must provide the tenant with a copy as soon as reasonably practicable.

218CCancellation of performance improvement plan

(1)

The regulator may, by notice to a registered provider, cancel a performance improvement plan which it has approved.

(2)

Notice under subsection (1) must specify the date (the “cancellation date”) on which the cancellation takes effect (which may be a date before the notice is given).

(3)

If a performance improvement plan is cancelled in accordance with subsection (1) the duties mentioned in subsection (4) cease to apply (or are treated as having ceased to apply) from the cancellation date.

But this does not affect any action taken (or being taken) by the regulator in relation to a breach of such a duty before the cancellation date.

(4)

The duties are—

(a)

the duty to publish a performance improvement plan which has been approved (see section 218A(2)(e));

(b)

the duty in section 218B(2) (duty to implement a plan);

(c)

the duty in section 218B(4) (duty to provide copy of plan).

218DAppeals

(1)

A registered provider may appeal to the High Court against a decision of the regulator to give the provider a performance improvement plan notice.

(2)

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 notice.

(3)

The requirement to prepare and submit a performance improvement plan is suspended during the appeal period.

(4)

The “appeal period” means—

(a)

where an appeal is brought, the period beginning with the day on which the performance improvement plan 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.

(5)

But where a performance improvement plan has been approved under section 218B an appeal under this section does not suspend—

(a)

the duty to publish a performance improvement plan which has been approved (see section 218A(2)(e));

(b)

the duty in section 218B(2) (duty to implement a plan);

(c)

the duty in section 218B(4) (duty to provide copy of plan).”

(3)

In section 220 (grounds for giving enforcement notice), before subsection (12) (but after the subsection (11C) inserted by section 27) insert—

“(11D)

Case 14 is where the registered provider has failed to comply with a performance improvement plan notice.

(11E)

Case 15 is where the registered provider has a performance improvement plan which has been approved by the regulator and has failed to implement it in full.”

(4)

In section 227 (grounds for imposition of a penalty), before subsection (8) (but after the subsection (7C) inserted by section 27) insert—

“(7D)

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).”

(5)

In section 237 (grounds for award of compensation) at the end insert—

“(5)

Case 4 is where the registered provider has failed to comply with a performance improvement plan notice.

(6)

Case 5 is where the registered provider has failed to comply with the duty in section 218B(4) (duty to provide copy of performance improvement plan).”

(6)

In section 247 (management tender), in subsection (1), after paragraph (b) insert “, or

(c)

a registered provider has failed to comply with a performance improvement plan notice.”

(7)

In section 251 (appointment of manager), in subsection (1), after paragraph (b) insert “, or

(c)

a registered provider has failed to comply with a performance improvement plan notice.”

(8)

In section 252A (appointment of advisers to local authority), in subsection (2), at the end of paragraph (e) (inserted by paragraph 10 of Schedule 3) insert “, or

(f)

that the authority has failed to comply with a performance improvement plan notice.”

32Emergency remedial action

After section 225 of the Housing and Regeneration Act 2008 insert—

“Emergency remedial action

225AOverview

This group of sections gives the regulator power to authorise persons to enter premises to take specified action to remedy specified failures on the part of registered providers.

225BPower to take emergency remedial action

(1)

If the conditions in subsections (2) to (4) are met, the regulator may arrange for an authorised person to take emergency remedial action in respect of premises.

(2)

Condition 1 is that a survey of the condition of the premises has been carried out under section 199.

(3)

Condition 2 is that the regulator is satisfied that—

(a)

the registered provider has failed to maintain the premises in accordance with standards under section 193, and

(b)

that failure has caused an imminent risk of serious harm to the health or safety of the occupiers of those or other premises.

(4)

Condition 3 is that the registered provider has failed to comply with an enforcement notice requiring it to take action to address the failure mentioned in subsection (3)(a).

(5)

In this section and in sections 225C to 225G, “emergency remedial action”, in relation to premises, is carrying out such works to the premises as the authorised person considers immediately necessary to remove the imminent risk of serious harm mentioned in subsection (3)(b).

(6)

In this section and in sections 225C to 225G, “authorised person” means a member of the regulator’s staff, or another person, authorised in writing by the regulator for the purposes of the section concerned.

(7)

Arrangements for a person other than a member of the regulator’s staff to take emergency remedial action may include provision about payments.

225CEmergency remedial action: power to enter without warrant

(1)

An authorised person may enter premises at any reasonable time, or times, to take emergency remedial action.

(2)

The power in subsection (1) may only be exercised if an authorised person has given a pre-entry notice to—

(a)

if the premises are occupied, the occupier (or any one of the occupiers),

(b)

if the premises include common parts of a building and there are occupied dwellings in the building that have use of those common parts, the occupier (or any one of the occupiers) of each of those dwellings,

(c)

the registered provider whose failure to maintain the premises has caused the imminent risk of serious harm, and

(d)

each person registered in the register kept under section 1 of the Land Registration Act 2002 as the proprietor of a registered estate (within the meaning of that Act) in the premises.

(3)

A pre-entry notice required by subsection (2) need only be given once in respect of emergency remedial action in relation to premises, even if an authorised person enters the premises on more than one occasion in order to take the emergency remedial action.

(4)

A “pre-entry notice” is a notice which—

(a)

identifies the premises to be entered;

(b)

identifies the failure to maintain the premises which has caused the imminent risk of serious harm;

(c)

states that a person authorised by the regulator intends to enter the premises;

(d)

specifies the date (or the first date) that the authorised person proposes to enter the premises to take emergency remedial action;

(e)

specifies the power under this section as the power under which the authorised person intends to enter the premises;

(f)

explains the effect of section 225H.

(5)

A pre-entry notice may state that, if entry to the premises were to be refused, an authorised person would propose to apply for a warrant under section 225E.

(6)

An authorised person may not enter premises in reliance on a pre-entry notice—

(a)

before the date (or the first date) specified in the notice, or

(b)

within 24 hours of giving the notice, 

except where the relevant person in respect of the notice consents.

(7)

In subsection (6), “the relevant person” in respect of the pre-entry notice means—

(a)

in the case of a pre-entry notice required by subsection (2)(a) or (b), the occupier (or any one of the occupiers) of the premises or dwelling;

(b)

in the case of a pre-entry notice required by subsection (2)(c) or (d), the person (or each person) to whom a pre-entry notice is required to be given.

(8)

In this section, “common parts”, in relation to a building, includes the structure and exterior of that building and any common facilities provided (whether or not in the building) for persons who occupy the building.

225DPower under section 225C: supplementary

(1)

A pre-entry notice required by section 225C(2)(a) or (b) may be given by fixing it to some conspicuous part of the premises.

(2)

A pre-entry notice required by section 225C(2)(d) may be given by sending it to an address supplied for the purpose of service of notice under the Land Registration Act 2002 (see paragraph 5 of Schedule 10 to that Act).

(3)

An authorised person who under section 225C has entered, or who is seeking to enter, premises to take emergency remedial action must produce a copy of the authorisation mentioned in 225B(6) on request by an occupier.

(4)

An authorised person entering premises to take emergency remedial action may—

(a)

be accompanied by such other persons, and

(b)

take onto the premises such equipment or materials,

as the authorised person thinks necessary for the purposes of taking the emergency remedial action.

(5)

Equipment or materials taken onto premises by virtue of subsection (4)(b) may be left in a place on the premises until the emergency remedial action has been taken provided that—

(a)

leaving the equipment or the materials in that place does not significantly impair the ability of an occupier to use the premises, or

(b)

leaving the equipment or the materials on the premises is necessary for the purposes of taking the emergency remedial action and it is not possible to leave it or them in a place that does not significantly impair the ability of an occupier to use the premises.

(6)

Where the premises include common parts of a building (as defined in section 225C), references in subsection (5) to the ability of an occupier to use the premises include the ability of an occupier of a dwelling that has use of the common parts to use those parts or the dwelling.

225EEmergency remedial action: power to enter with warrant

(1)

This section applies where a justice of the peace is satisfied, on sworn information in writing by an authorised person, that entry to premises specified in the information is reasonably required to take emergency remedial action under section 225B.

(2)

The justice may issue a warrant authorising the authorised person who is named in it to enter the premises to take emergency remedial action where the justice is satisfied that—

(a)

entry to the premises has been sought under section 225C but has been refused,

(b)

the premises are unoccupied or that the occupier is temporarily absent, or

(c)

there are reasonable grounds to believe that the authorised person will not be able to obtain entry to the premises without a warrant.

(3)

A warrant under this section authorises the authorised person to enter the premises at any reasonable time, or times, using reasonable force if necessary.

(4)

A warrant under this section authorises an authorised person entering premises to take onto the premises such equipment or materials as the authorised person thinks necessary for the purposes of taking the emergency remedial action.

(5)

Equipment or materials taken onto premises by virtue of subsection (4) may be left in a place on the premises until the emergency remedial action has been taken provided that—

(a)

leaving the equipment or the materials in that place does not significantly impair the ability of an occupier to use the premises, or

(b)

leaving the equipment or the materials on the premises is necessary for the purposes of taking the emergency remedial action and it is not possible to leave it or them in a place that does not significantly impair the ability of an occupier to use the premises.

(6)

Where the premises include common parts of a building (as defined in section 225C), references in subsection (5) to the ability of an occupier to use the premises include the ability of an occupier of a dwelling that has use of the common parts to use those parts or the dwelling.

(7)

A warrant under this section may authorise persons (“accompanying persons”) to accompany the authorised person.

(8)

Accompanying persons—

(a)

have the same powers as the authorised person in respect of execution of the warrant, but

(b)

must exercise those powers only in the company, and under the supervision, of the authorised person.

(9)

An authorised person who has entered, or who is seeking to enter, premises under a warrant under this section must produce on request by any person—

(a)

a copy of the warrant;

(b)

a copy of the authorisation mentioned in 225B(6).

(10)

A warrant under this section continues in force until the emergency remedial action has been taken.

(11)

If the premises are unoccupied or the occupier is temporarily absent, the authorised person who has entered the premises under a warrant under this section must leave the premises as effectively secured against trespassers as the authorised person found them.

225FOffences

(1)

A registered provider, or an officer of a registered provider, commits an offence if the provider or officer obstructs an authorised person—

(a)

in exercising a power under section 225C or 225D, or

(b)

in exercising a power under section 225B, where the authorised person has entered the premises to take emergency remedial action under the power in section 225C.

(2)

A person commits an offence if the person obstructs an authorised person—

(a)

in exercising a power conferred by a warrant under section 225E, or

(b)

in exercising a power under section 225B, where the authorised person has entered the premises to take emergency remedial action under a warrant under section 225E.

(3)

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(4)

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.

225GReclaiming expenses

(1)

Where the regulator makes arrangements under section 225B, the regulator may by notice require the registered provider concerned to pay to the regulator—

(a)

such relevant expenses as are specified in the notice;

(b)

interest on those expenses (see subsection (4)).

(2)

“Relevant expenses” are—

(a)

expenses reasonably incurred by the regulator—

(i)

in deciding whether to make arrangements under section 225B;

(ii)

in making those arrangements;

(iii)

in the authorised person taking emergency remedial action;

(b)

any costs reasonably incurred by the regulator related to the action in paragraph (a)(iii).

(3)

Sums mentioned in subsection (1)(a) are payable at the end of the period of 28 days beginning with the day on which the notice is given.

(4)

Interest may be charged on any sums not paid by the end of the period mentioned in subsection (3) at such reasonable rate as the regulator may determine.

225HAppeals

(1)

A registered provider may appeal to the High Court against—

(a)

a decision of the regulator to make arrangements under section 225B(1);

(b)

a decision of the regulator to give a notice under section 225G(1).

(2)

An appeal under subsection (1)(a) must be brought within the period of 28 days beginning—

(a)

with the day on which the registered provider is given the pre-entry notice under section 225C(2), or

(b)

with the day on which the premises were first entered under a warrant obtained under section 225E on the grounds in subsection (2)(b) or (c) of that section.

(3)

An appeal under subsection (1)(b) must be brought within the period of 28 days beginning with the day on which the registered provider is given the notice under section 225G(1).

(4)

No question may be raised on an appeal under subsection (1)(b) which might have been raised on an appeal under subsection (1)(a).

(5)

Where an appeal under subsection (1)(b) is brought—

(a)

the requirement to pay the sums described in section 225G(1)(a) is suspended during the period beginning with the day on which the notice under section 225G(1) is given and ending with the day on which the appeal is finally determined or withdrawn, and

(b)

no interest is payable by virtue of section 225G(1)(b) in respect of that period.”

33Extension of powers to charities who have not received public assistance

In the Housing and Regeneration Act 2008 omit—

(a)

section 209(1) (inquiries);

(b)

section 256(7) (orders restricting dealings during inquiry);

(c)

section 257(5) (orders restricting dealings following inquiry);

(d)

section 259(5) (orders suspending officers etc during inquiry);

(e)

section 260(4) (orders removing or suspending officers etc following inquiry);

(f)

section 267(2) (orders removing officers);

(g)

section 269(6)(a), including the final “and” (orders appointing new officers).

34Notification of Charity Commission of exercise of enforcement powers

(1)

The Housing and Regeneration Act 2008 is amended as follows.

(2)

In section 256 (restrictions on dealings during inquiry), after subsection (6) insert—

“(6A)

If the registered provider is a registered charity, the regulator must notify the Charity Commission if it makes an order under this section.”

(3)

In section 257 (restrictions on dealings following inquiry), after subsection (4) insert—

“(4A)

If the registered provider is a registered charity, the regulator must notify the Charity Commission if it makes an order under this section.”

(4)

In section 267 (supplemental provision about removal of officers), after subsection (1A) (inserted by paragraph 17 of Schedule 4) insert—

“(1B)

The regulator must notify the Charity Commission if it makes an order removing an officer of a registered charity.”

(5)

In section 269 (appointment of new officers), in subsection (6)(b), for “consulted the Charity Commission” substitute “notified the Charity Commission of its intention to do so”.

35Exercise of powers: land with a Crown or Duchy interest

Before section 277 of the Housing and Regeneration Act 2008 (but after the heading before that section) insert—

“276AExercise of powers: land with a Crown or Duchy interest

(1)

The powers in Chapters 6 and 7 are exercisable in relation to premises which are on land in which there is a Crown interest or a Duchy interest.

(2)

A “Crown interest” means—

(a)

an interest belonging to His Majesty in right of the Crown, or

(b)

an interest belonging to a government department or held in trust for His Majesty for the purposes of a government department.

(3)

A “Duchy interest” means an interest belonging to His Majesty in right of the Duchy of Lancaster or belonging to the Duchy of Cornwall.”

36Regulatory and enforcement powers: further amendments

Schedule 3 makes further amendments to the regulatory and enforcement powers of the Regulator of Social Housing.