SCHEDULETransfer of Functions from the HCA to the Regulator of Social Housing
PART 1Establishment of the Regulator of Social Housing
1
The Housing and Regeneration Act 2008 is amended as follows.
2
In section 24 (the HCA: objects), omit subsection (1A).
3
In section 4(6)5 (powers of the HCA: general), omit paragraph (aa) (but not the final “and”).
4
In section 19 (financial assistance), after subsection (1), insert—
1A
But the HCA must not give financial assistance in contravention of a direction given by the Regulator of Social Housing under section 100G.
5
In section 316 (duties in relation to social housing)—
a
after subsection (8), insert—
8A
Subsection (8B) applies if the HCA is proposing to give financial assistance on condition that the recipient provides low cost home ownership accommodation.
8B
The HCA must consult the Regulator of Social Housing about the proposals.
b
after subsection (11), insert—
11A
For the purposes of this section, a person provides low cost home ownership accommodation if (and only if) the person acquires, constructs or converts any housing or other land for use as low cost home ownership accommodation or ensures such acquisition, construction or conversion by another.
c
in subsection (12), after “In this section—”, insert—
“low cost home ownership accommodation” has the meaning given by section 70, and
6
In section 327 (recovery etc of social housing assistance) after subsection (10), insert—
10A
The HCA must notify the Regulator of Social Housing at least 14 days before exercising, in relation to a registered provider of social housing, any of the powers conferred by subsections (2) to (4).
7
In section 348 (determinations under sections 32 and 33)—
a
omit subsection (2), and
b
before subsection (3), insert—
2A
Before making such a determination, the HCA must consult—
a
the Regulator of Social Housing, and
b
such other persons as it considers appropriate.
8
After section 36 insert—
Co-operation with the Regulator of Social Housing36A
1
The HCA must co-operate with the Regulator of Social Housing.
2
In particular, the HCA must consult the Regulator of Social Housing on matters likely to interest the Regulator.
3
The HCA may provide services and other assistance in connection with the operation of the Regulator of Social Housing.
4
The services or assistance which may be provided pursuant to subsection (3) include, but are not limited to—
a
the provision of accommodation or other facilities;
b
technical resources; and
c
the provision of staff.
9
In section 429 (agency arrangements with UDCs)—
a
in subsection (2)(a), omit “or the functions to which subsection (2A) applies”, and
b
omit subsection (2A).
10
In section 4610 (guidance by the Secretary of State), omit subsection (8).
11
In section 4711 (directions by the Secretary of State), omit subsection (7).
12
In the Table in section 5812 (Part 1: index of defined expressions) omit the entry for “Regulator of Social Housing”.
13
In section 60(4)13 (structural overview of Part 2), in the entry in relation to Chapter 2 in the Table—
a
in the second column, for “92A” substitute “92L”, and
b
in the final column, omit “and the Regulation Committee”.
14
After the heading for Chapter 2 of Part 2 insert—
The Regulator
Establishment80A
1
The Regulator of Social Housing is established as a body corporate.
2
The Regulator of Social Housing is referred to in this Part as “the regulator”.
3
The regulator (and any member of the regulator)—
a
is not the servant or agent of the Crown, and
b
does not share any immunity or privilege of the Crown.
4
No property of the regulator is to be regarded as property of, or held on behalf of, the Crown.
Membership80B
1
The regulator is to consist of—
a
a person appointed by the Secretary of State as chair (“the chair”),
b
at least 6 and no more than 10 other members, appointed by the Secretary of State, and
c
the chief executive appointed under section 80D(1).
2
The Secretary of State must consult the chair before appointing a member under subsection (1)(b).
3
In appointing a person to be an appointed member the Secretary of State must—
a
have regard to the desirability of appointing a person who has experience of, and has shown some capacity in, matters relevant to the exercise of the functions of the regulator, and
b
be satisfied that the person has no financial or other interest likely to affect prejudicially the exercise of the person’s functions as a member.
4
The Secretary of State may require any person who the Secretary of State proposes to appoint as an appointed member to provide any information the Secretary of State considers necessary for the purposes of subsection (3)(b).
5
In this Part “appointed member” means—
a
the chair, or
b
a member appointed under subsection (1)(b).
Terms of appointment of members80C
1
An appointed member holds and vacates office in accordance with the appointed member’s terms of appointment (subject to this section).
2
An appointed member may resign by notice to the Secretary of State.
3
The Secretary of State may dismiss an appointed member who—
a
has been absent from meetings of the regulator for a period of more than 6 months without its permission,
b
has become bankrupt or has made an arrangement with the member’s creditors,
c
the Secretary of State thinks has failed to comply with the member’s terms of appointment,
d
the Secretary of State thinks has failed to comply with the member’s obligations under section 92P (members’ interests),
e
the Secretary of State thinks is otherwise unable, unfit or unsuitable to perform the functions of the member.
Staff80D
1
The chair and other appointed members of the regulator must appoint a chief executive.
2
But a person may be appointed as chief executive under subsection (1) only if approved by the Secretary of State.
3
The regulator may appoint other staff.
4
The regulator may pay to its staff such remuneration and allowances as it may decide.
5
The regulator may—
a
pay such pensions, allowances or gratuities to or in respect of any, or any former, member of staff, or
b
pay such sums towards the provision for the payment of pensions, allowances or gratuities to or in respect of any, or any former, member of staff,
as it may decide.
15
Omit the heading above section 92A and sections 92A to 92J (regulation functions of the HCA and provisions about its Regulation Committee).
16
After section 92K insert—
Procedure etc.
Committees92L
1
The regulator may establish committees and sub-committees.
2
A committee or sub-committee may include non-members (provided that it includes at least one member).
3
The regulator may, with the consent of the Secretary of State, pay such remuneration and allowances as it thinks fit to any person who—
a
is a member of a committee or sub-committee, but
b
is not a member of the regulator.
Procedure92M
1
Subject to the provisions of this Part, the regulator may determine its own procedure and the procedure of any committee or sub-committee.
2
The regulator must make such arrangements as it thinks appropriate for publishing its procedure.
3
The validity of any proceedings is not affected by—
a
any vacancy of the chair, chief executive or any other member,
b
any defect in the appointment of the chair, chief executive or any other member, or
c
any contravention of section 92P (members’ interests).
4
In this section “procedure” includes quorum.
Conflict of interest92N
1
The regulator’s procedure under section 92M must include arrangements for dealing with any conflict of interest of—
a
members,
b
members of staff, or
c
members of committees or sub-committees.
2
The procedure must oblige a person—
a
to declare any financial or other personal interest relevant to the exercise of a function of the regulator, and
b
to withdraw from the performance of that function unless the regulator directs otherwise, being satisfied that the interest will not influence performance of the function.
Delegation92O
1
The regulator may delegate any of its functions to—
a
a committee,
b
a sub-committee,
c
a member, or
d
a member of staff.
2
A committee may further delegate to a sub-committee, a member of the regulator, or a member of staff.
Members’ interests92P
1
A member of the regulator who is directly or indirectly interested in any matter arising at a meeting of the regulator must disclose the nature of that interest to the meeting.
2
A member of a committee or sub-committee of the regulator who is directly or indirectly interested in any matter arising at a meeting of the committee or sub-committee must disclosure the nature of that interest to the meeting.
3
Where a member has disclosed an interest within subsection (1) or (2)—
a
that member must not take part in any deliberation or decision about the matter if it is a contract or agreement of any description, but
b
may otherwise take part in any deliberation or decision about the matter unless at least one-third of the other members at the meeting decide that the interests disclosed might prejudicially affect the member’s consideration of the matter.
4
The regulator must prepare and keep up to date a register of members’ interests of the interests disclosed under subsection (1) or (2).
5
The register required by subsection (4) must include the interests of—
a
the members of the regulator, and
b
all members of committees or sub-committees whether or not falling within paragraph (a).
Seal92Q
1
The application of the regulator’s seal must be authenticated by a member of the regulator or by some other person authorised (generally or specially) by the regulator for that purpose.
2
A document purporting to be duly executed under the seal—
a
is to be received in evidence, and
b
is to be treated as so executed unless the contrary is shown.
17
In section 9414 (studies), omit subsection (3).
18
Before section 10015 insert—
Remuneration99A
1
The regulator may pay to or in respect of appointed members—
a
remuneration, and
b
travelling and other allowances.
2
The Secretary of State must determine rates and eligibility criteria for payments under subsection (1).
3
If the Secretary of State considers that there are special circumstances that justify the payment of compensation to a person on ceasing to be an appointed member, the regulator may pay such compensation as is determined by the Secretary of State.
19
In section 100 (charging), omit subsection (2).
20
After section 100 insert—
Assistance by Secretary of State100A
1
The Secretary of State may make payments to the regulator by way of grant or loan.
2
A grant or loan may be subject to conditions (which may include provision for repayment, with or without interest).
Borrowing100B
1
The regulator may borrow—
a
by way of overdraft or otherwise, for the purpose of what it considers to be short-term management of its finances, or
b
from the Secretary of State.
2
The regulator may not borrow otherwise.
Accounts100C
1
The regulator must keep proper accounts (and proper records of its accounts).
2
As soon as is reasonably practicable after the end of each financial year the regulator must prepare a statement of accounts in respect of that financial year.
3
The statement must be in such form as the Secretary of State may direct.
4
The regulator must, within such period as the Secretary of State may direct, send a copy of the statement to—
a
the Secretary of State, and
b
the Comptroller and Auditor General.
5
The Comptroller and Auditor General must—
a
examine, certify and report on the statement, and
b
send a copy of the certified statement and the report to the Secretary of State as soon as possible.
6
The Secretary of State must lay before Parliament a copy of each statement and report received under subsection (5).
Regulator’s annual report100D
1
The regulator must, as soon as is reasonably practicable after the end of each financial year, prepare an annual report in relation to how it has exercised its functions during that financial year.
2
The regulator must, within such period as the Secretary of State may direct, send a copy of the annual report to the Secretary of State.
3
The Secretary of State must lay a copy of each annual report before Parliament.
Financial year100E
1
The regulator’s financial year is each period of 12 months beginning with 1st April.
2
But the first financial year is the period—
a
beginning with the day on which section 80A comes into force, and
b
ending with the next 31st March.
Relationship with the HCACooperation with the HCA100F
1
The regulator must, in the exercise of its functions, cooperate with the HCA.
2
The regulator must, in particular, consult the HCA on matters related to the HCA’s social housing functions.
Direction to the HCA100G
1
The regulator may direct the HCA not to give financial assistance to a specified registered provider—
a
under section 19, and
b
in connection with social housing.
2
A direction may be given if—
a
the regulator has decided to hold an inquiry into the affairs of the registered provider under section 206 (and the inquiry is not concluded),
b
the regulator has received notice in respect of the registered provider under section 14516, or
c
the regulator has appointed an officer of the registered provider under section 26917 (and the person appointed has not vacated office).
3
A direction may prohibit the HCA from giving assistance of a specified kind (whether or not in pursuance of a decision already taken and communicated to the registered provider).
4
A direction may not prohibit grants to a registered provider in respect of discounts given by the provider on disposals of dwellings to tenants.
5
A direction has effect until withdrawn.
21
In section 112(4)18 (duty to consult before setting criteria for voluntary registration), before paragraph (aa) insert—
za
the HCA,
22
In section 11719 (the regulator: fees)—
a
in subsection (9) for “HCA’s” substitute “regulator’s”,
b
omit subsection (10).
23
In section 14620 (duration of moratorium), after subsection (7), insert—
7A
The regulator shall also notify the HCA as follows—
a
if it extends a moratorium, and
b
when a moratorium ends.
24
In section 14721 (further moratorium) in subsection (4), before paragraph (a) insert—
za
the HCA,
25
In section 19622 (consultation on standards and codes of practice) after subsection (1), insert—
1A
Before setting standards, or issuing, revising or withdrawing a code of practice, the regulator must also consult the HCA.
26
In section 19723 (direction by Secretary of State), in subsection (4), before paragraph (a), insert—
za
the HCA,
27
In section 20224 (inspections: supplemental)—
a
in subsection (6) after paragraph (b), insert—
ba
the HCA,
b
omit subsection (8).
28
In section 21625 (consultation on use of intervention powers), at the end, insert—
f
the HCA.
29
In section 22226 (notifying HCA etc), before paragraph (aa), insert—
za
to the HCA,
30
In section 23027 (penalty notices: warning), in subsection (2), before paragraph (aa), insert—
za
the HCA,
31
After section 23128 insert—
Notifying the HCA231A
If the regulator imposes a penalty on a registered provider it must send a copy of the penalty notice to the HCA.
32
In section 24229 (compensation notices: warning), in subsection (3), before paragraph (aa) insert—
za
the HCA,
33
In section 24830 (management tender: supplemental)—
a
in subsection (4) before paragraph (aa) insert—
za
the HCA,
b
in subsection (7) after paragraph (b) insert—
ba
the HCA,
c
in subsection (8) before paragraph (aa) insert—
za
the HCA,
34
In section 25031 (management transfer: supplemental)—
a
in subsection (4), before paragraph (aa) insert—
za
the HCA,
b
in subsection (7), after paragraph (b) insert—
ba
the HCA,
c
in subsection (8), before paragraph (aa) insert—
za
the HCA,
35
In section 25232 (appointment of manager: supplemental)—
a
in subsection (4) before paragraph (aa) insert—
za
the HCA,
b
after subsection (6) insert—
6A
The regulator must notify the HCA of an appointment or requirement under section 251(2).
36
In the Table in section 27633 (index of defined terms)—
a
before the entry for “Associate” insert “Appointed member” and “Section 80B”,
b
in the entry for “The chair” for “92C” substitute “80B”,
c
before the entry for “Fundamental objectives” insert “Financial Year” and “Section 100E”,
d
in the entry for “The regulator” for “92A” substitute “80A”,
e
in the entry for “The Regulator of Social Housing” for “92A” substitute “80A”,
f
omit the entries for “External member” and “The internal member”.
37
In Schedule 134 (the Homes and Communities Agency)—
a
in paragraph 1, omit sub-paragraph (5).
b
omit paragraph 18.
PART 2Amendments consequential on Part 1
Public Records Act 195838
In Schedule 1 to the Public Records Act 195835 (definition of public records), in Part 2 of the Table at the end of paragraph 3, at the appropriate place insert—
The Regulator of Social Housing
Parliamentary Commissioner Act 196739
In Schedule 2 to the Parliamentary Commissioner Act 196736 (departments etc subject to investigation) at the appropriate place insert—
The Regulator of Social Housing
House of Commons Disqualification Act 197540
In Part 2 of Schedule 1 to the House of Commons Disqualification Act 197537 (bodies of which all members are disqualified) at the appropriate place insert—
The Regulator of Social Housing
Freedom of Information Act 200041
In Part 6 of Schedule 1 to the Freedom of Information Act 200038 (public authorities) at the appropriate place insert—
The Regulator of Social Housing
Equality Act 201042
In Part 1 of Schedule 19 to the Equality Act 201039 (public authorities) under “Regulators”, after “The Pensions Regulator” insert—
The Regulator of Social Housing.
Official Statistics Order 201343
In the Schedule to the Official Statistics Order 201340 at the appropriate place insert—
Regulator of Social Housing
Equality Act 2010 (Specific Duties and Public Authorities) Regulations 201744
In Schedule 2 to the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 201741 under “Regulators”, after “The Pensions Regulator” insert—
The Regulator of Social Housing.
PART 3Transfer of Property, Rights and Liabilities
Transfer of property, rights and liabilities45
1
The Secretary of State must determine (following consultation with the HCA including with the Regulation Committee) which property, rights and liabilities are to be transferred to the Regulator from the HCA as a consequence of the transfer of functions made by this Order from the Regulation Committee to the Regulator.
2
The transfer of such property, rights and liabilities as determined by the Secretary of State is effective on the transfer date.
3
If the Secretary of State, the HCA and the Regulator agree there may be one or more transfers of property, rights and liabilities to the Regulator from the HCA after the transfer date, then—
a
the Secretary of State, the HCA and the Regulator must agree which property, rights and liabilities are to be transferred, and
b
the Secretary of State is to determine the date on which such transfer will take effect.
4
The property, rights and liabilities that may be transferred under this paragraph includes property, rights and liabilities that would not otherwise be capable of being transferred or assigned by the HCA.
5
A transfer of property, rights and liabilities under this paragraph takes effect—
a
despite the absence of any required consent or concurrence to or with the transfer,
b
as if no liability existed in respect of a contravention of a requirement for consent or concurrence, and
c
as if there were no interference with any property or right
that would otherwise exist by reason of any provision (whether under any enactment or agreement or otherwise) having effect in relation to the terms on which the Regulator is entitled to the property or right, or subject to the liability, in question.
Employment contracts: transfer of rights and liabilities46
1
The rights and liabilities transferred by paragraph 45 may include rights and liabilities under a contract of employment.
2
Where the transfer of rights and liabilities includes rights and liabilities under a contract of employment, the Transfer of Undertakings (Protection of Employment) Regulations 200642 apply to the transfer whether or not it is a relevant transfer for the purposes of those Regulations.
Interpretation47
In this Part of this Schedule and in Part 4 “the transfer date” means the date on which paragraph 45 comes into force.
PART 4Transitional and Savings Provisions
General transitional and saving provisions48
1
A relevant transfer from the HCA to the Regulator does not affect the validity of anything done (or having effect as if done) by or in relation to the HCA before the transfer takes effect.
2
Anything that—
a
is done (or has effect as if done) by or in relation to the HCA in respect of anything transferred under a relevant transfer, and
b
has effect immediately before the date on which the relevant transfer took place,
is to be treated as done by or in relation to the Regulator.
3
There may be continued by or in relation to the Regulator anything (including legal proceedings) that—
a
relates to anything transferred under a relevant transfer, and
b
is in the process of being done by, on behalf of, or in relation to the HCA immediately before the date on which the relevant transfer took place.
4
Sub-paragraph (5) applies to any document that—
a
relates to anything transferred under a relevant transfer, and
b
is in effect immediately before the date on which the relevant transfer took place.
5
Any references (however expressed) in the document to the HCA or to the Regulation Committee are to be read, so far as is necessary, as references to the Regulator.
6
In sub-paragraphs (1) to (3) and (5) a reference to the HCA is to the HCA acting through or for the purposes of the functions of the Regulation Committee.
7
References in this paragraph to “relevant transfer” are to—
a
the transfer of any function from the HCA to the Regulator, or
b
the transfer from the HCA to the Regulator under paragraph 45 of any property, rights or liabilities.
Membership of the Regulator: transitional provision49
1
The Secretary of State must appoint the persons who were, immediately before this Order comes into force, the chair and other members of the Regulation Committee as the first chair and other appointed members of the Regulator, subject to their willingness to be appointed.
2
Section 80D of the Housing and Regeneration Act 2008, inserted by Part 1, does not apply, and accordingly the Secretary of State must appoint the first chief executive of the Regulator.
3
The Secretary of State must determine the terms of an appointment made under sub-paragraph (1) or (2).
4
Where a person who is a member of both the Regulation Committee and the HCA is appointed by the Secretary of State as a member of the Regulator under this paragraph, that person’s membership of the HCA ceases on the date on which the appointment to the Regulator takes effect.