Housing (Amendment) (Scotland) Act 2018

Regulatory intervention by Scottish Housing Regulator

Managers appointed by, or on the requirement of, the Scottish Housing Regulator

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• (1) The Housing (Scotland) Act 2010 is amended as follows.

• (2) In section 57 (appointment of manager for housing activities)—

• (a) in subsection (1)—

• (i) in paragraph (a), for “is, or is at risk of,” substitute “ has failed, or is ”,

• (ii) in paragraph (b), for “to an appropriate standard” substitute “ in a way that will rectify the failure ”,

• (b) in subsection (2), for paragraphs (a) and (b) substitute “ to manage the landlord's housing activities generally, or such aspects of those activities as are necessary, for the purpose of rectifying the failure which the Regulator considers requires the appointment of the manager. ”.

• (3) In section 58 (appointment of manager for financial or other affairs)—

• (a) for subsection (1) substitute—

(1) This section applies where the Regulator, having made inquiries or otherwise, considers— (a) that a registered social landlord has failed, or is failing, to comply with— (i) a duty imposed by this Act or by any other enactment, or (ii) a requirement imposed on the landlord by the Regulator under this Act or any other enactment, and (b) that a person needs to be appointed in order to ensure that the landlord manages its financial or other affairs in a way that will rectify the failure.

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• (b) in subsection (2), for paragraphs (a) and (b) substitute “ to manage the landlord's financial or other affairs generally, or such aspects of those affairs as are necessary, for the purpose of rectifying the failure which the Regulator considers requires the appointment of the manager. ”.

• (4) In section 59 (appointment of manager under section 57 or 58: supplementary)—

• (a) in subsection (1), after “including” insert “ , subject to subsection (1A), ”,

• (b) after subsection (1) insert—

(1A) The appointment is to be only for so long as is necessary to rectify the failure which gave rise to the manager's appointment.

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• (c) for subsection (4) substitute—

(4) The Regulator may give a manager directions about the rectification of the failure which gave rise to the manager's appointment. (4A) The manager— (a) must comply with such directions, (b) may be removed by the Regulator on failure to so comply.

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• (5) In section 87 (extra powers of manager of registered society appointed by the Scottish Housing Regulator)—

• (a) in subsection (3), for “section 50 of the Co-operative and Community Benefit Societies and Credit Unions Act 1965 (c.12)” substitute “ section 109 of the Co-operative and Community Benefit Societies Act 2014 ”,

• (b) in subsection (4), for “section 51 or 52 of the Co-operative and Community Benefit Societies and Credit Unions Act 1965 (c.12) (and, in particular, has effect subject to section 54 of that Act)” substitute “ section 110 or 112 of the Co-operative and Community Benefit Societies Act 2014 ”.

Registered social landlords: removal, suspension and appointment of officers etc.

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• (1) The Housing (Scotland) Act 2010 is further amended as follows.

• (2) In section 60 (general power to remove officers), in subsection (1), for paragraph (e) substitute—

(e) is, because of absence or other failure to act, failing to ensure that the registered social landlord is complying with— (i) a duty imposed by this Act or by any other enactment, (ii) a requirement imposed on the landlord by the Regulator under this Act or any other enactment.

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• (3) In section 61 (suspension of officers etc. during or following inquiries), in subsection (1), for paragraphs (a) to (c) substitute—

(a) that the registered social landlord has failed, or is failing, to comply with— (i) a duty imposed by this Act or by any other enactment, or (ii) a requirement imposed on the landlord by the Regulator under this Act or any other enactment, relating to its housing activities or its financial or other affairs,

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• (4) In section 62 (removal of officers etc. following inquiries), in subsection (1), for paragraphs (a) to (c) substitute—

(a) that the registered social landlord has failed, or is failing, to comply with— (i) a duty imposed by this Act or by any other enactment, or (ii) a requirement imposed on the landlord by the Regulator under this Act or any other enactment, relating to its housing activities or its financial or other affairs,

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• (5) In section 63 (responsible individuals), “misconduct, mismanagement,” is repealed.

• (6) In section 65 (appointment of new officers)—

• (a) in subsection (1)(d), for “for the proper management of the registered social landlord's” substitute

to rectify a failure by the registered social landlord to comply with— (i) a duty imposed by this Act or by any other enactment, or (ii) a requirement imposed on the landlord by the Regulator under this Act or any other enactment, relating to its

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• (b) in subsection (2), after “including” insert “ , subject to subsection (2A), ”,

• (c) after subsection (2) insert—

(2A) Where the officer is appointed by virtue of subsection (1)(d) to rectify a failure to comply with a duty or requirement, the appointment is to be only for so long as is necessary to so rectify the failure.

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• (d) in subsection (4), for “The” substitute “ Subject to subsection (4A), the ”,

• (e) after that subsection insert—

(4A) Where the officer was appointed by virtue of subsection (1)(d), subsection (2A) applies to the renewal of the appointment as it applies to the appointment.

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• (7) In section 165 (interpretation), in the definition of “officer”, in paragraph (b), for “section 74 of that Act” substitute “ section 149 of the Co-operative and Community Benefit Societies Act 2014 ”.

Disposal of land etc. by registered social landlords

Disposal of land or other assets by registered social landlord

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• (1) The Housing (Scotland) Act 2010 is further amended as follows.

• (2) In section 78 (effect of moratorium on disposal of registered social landlord's land), in subsection (2)(b), for “for which the Regulator's consent is not required because of section 108” substitute “ of a type mentioned in paragraphs (a) to (g) and (i) to (k) of section 108(1) ”.

• (3) For section 107 (power to dispose of land or assets) substitute—

(107) (1) A registered social landlord may make a disposal of land to which subsection (2) applies only if the landlord complies with section 110 in relation to the disposal. (2) This subsection applies to a disposal of land, other than a disposal by way of granting security over the land or any interest in it, which will not result in a tenant under a Scottish secure tenancy ceasing to be a tenant of the landlord making the disposal. (3) A registered social landlord may make a disposal of land to which subsection (4) applies only if–– (a) the landlord complies with sections 115 to 120 in relation to the disposal, and (b) a majority of tenants— (i) voting in a ballot in relation to the disposal under section 115A(1)(a) wish the disposal to proceed, or, as the case may be, (ii) whose written agreement to the disposal was sought under section 115A(1)(b) have given that agreement. (4) This subsection applies to a disposal of land which will result in a tenant under a Scottish secure tenancy ceasing to be a tenant of the landlord making the disposal. (5) This section does not apply where section 108 applies to the disposal.

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• (4) In section 108 (disposals not requiring consent), in subsection (1)—

• (a) for “The Regulator's consent under this Part is not required for” substitute “ This section applies to ”,

• (b) in paragraph (j), for “for which the Regulator's consent is required under Part 8” substitute “ in relation to which Part 8 applies ”.

• (5) The title of section 108 becomes “ Disposals not subject to section 107 ”.

• (6) In section 109 (notification where disposal consent not required), for subsections (1) and (2) substitute—

(1) A registered social landlord must notify the Regulator of any disposal of land or any other asset as soon as reasonably practicable (and, where section 107(4) applies, no later than 28 days) after the disposal is made. (2) The Regulator may make a determination— (a) dispensing with the notification requirement in subsection (1), (b) where section 107(4) applies, extending the period mentioned in that subsection.

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• (7) The title of section 109 becomes “ Notification of disposals ”.

• (8) In section 110 (tenant consultation: other disposals)—

• (a) for subsection (1) substitute—

(1) This section applies in relation to disposals of land by registered social landlords to which section 107(2) applies.

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• (b) in subsection (2), after “must” insert “ , before making such a disposal ”,

• (c) after subsection (2) insert—

(3) The Regulator must issue guidance in relation to consultation under subsection (2). (4) A registered social landlord must, in consulting tenants or other persons under subsection (2)(a), have regard to guidance issued by the Regulator under subsection (3).

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• (9) The title of section 110 becomes “ Tenant consultation where no change of landlord ”.

• (10) For section 111 (effect of disposals without consent) substitute—

(111) (1) A disposal of land by a registered social landlord to which section 107(2) applies is void if the landlord did not comply with section 110(2)(a). (2) A disposal of land by a registered social landlord to which section 107(4) applies is void if— (a) the landlord did not comply with section 115 or 115A(1), or (b) a majority of tenants— (i) voting in a ballot in relation to the disposal under section 115A(1)(a) did not wish the disposal to proceed, or, as the case may be, (ii) whose written agreement to the disposal was sought under section 115A(1)(b) did not give that agreement.

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Special procedure where disposal results in change of landlord

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• (1) The Housing (Scotland) Act 2010 is further amended as follows.

• (2) In section 113 (disposals resulting in change of landlord)—

• (a) in subsection (1), for paragraphs (a) and (b), substitute “ to which section 107(4) applies. ”,

• (b) subsection (2) is repealed.

• (3) Section 114 is repealed.

• (4) In section 115 (consultation with tenants)—

• (a) in subsection (1), “, after a direction given by the Regulator under section 114,” is repealed,

• (b) in subsection (2)—

• (i) in paragraph (a), sub-paragraph (ii) (and “and” immediately preceding it) is repealed,

• (ii) in paragraph (b), for “Regulator's consent” substitute “ approval of tenants by way of ballot or written agreement ”.

• (5) After section 115 insert—

(115A) (1) A registered social landlord must, in relation to a proposed disposal— (a) conduct a ballot of tenants of houses included in the proposed disposal on the question of whether the tenants wish the disposal to proceed, or (b) seek the written agreement of the tenants of houses included in the proposed disposal to the disposal. (2) The registered social landlord must— (a) as soon as reasonably practicable after the ballot is completed or, as the case may be, the period for the giving of written agreement has expired, and (b) before making the disposal, notify the Regulator of the results of the ballot or, as the case may be, the number of written agreements sought and the number given. (115B) (1) The Regulator must issue guidance in relation to tenant consultation and approval under sections 115 and 115A. (2) Guidance issued under subsection (1) may in particular include guidance as to— (a) how notices under section 115(1) and (2) are to be served and the information to be contained in such notices, (b) the consideration to be given to timeous representations made in pursuance of a notice served under section 115(1), (c) the circumstances in which the approval of tenants under section 115A is to be sought by way of— (i) ballot, (ii) written agreement, (d) how such ballots are to be conducted and how such written agreements are to be sought and given. (3) A registered social landlord must, in complying with sections 115 and 115A, have regard to guidance issued by the Regulator under subsection (1).

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• (6) Sections 116 to 119 are repealed.

• (7) In section 120 (unaffected tenants)—

• (a) in subsection (2)—

• (i) in paragraph (b), for “section 118” substitute “ section 115A(1)(a) ”,

• (ii) for paragraph (c) substitute—

(c) need not seek the agreement of an unaffected tenant when seeking written agreement under section 115A(1)(b).

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• (b) in subsection (3), for “Regulator” where it first occurs to the end substitute “ registered social landlord must confirm that the tenants concerned have all vacated the houses concerned when notifying the Regulator under section 115A(2) ”.

• (8) Sections 121 and 122 are repealed.

Organisational changes affecting registered social landlords

Change of name, office or constitution by registered social landlord

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• (1) The Housing (Scotland) Act 2010 is further amended as follows.

• (2) For section 92 (change of name or office) substitute—

(92) A registered social landlord must give the Regulator notice of— (a) any change to— (i) its name, or (ii) its registered or principal office, (b) any amendment to its constitution (other than a change of name or office), within 28 days of the change or amendment being made.

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• (3) Sections 93 to 95 are repealed.

Restructuring, winding up and dissolution of registered social landlord

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• (1) The Housing (Scotland) Act 2010 is further amended as follows.

• (2) In section 96 (restructuring, winding up and dissolution of registered societies), subsections (2) and (3) are repealed.

• (3) After that section insert—

(96A) (1) This section applies where the society proposes to pass a special resolution for the purposes of a restructuring provision where the restructuring— (a) will result in a tenant under a Scottish secure tenancy ceasing to be a tenant of the society proposing the restructuring, and (b) is a restructuring other than the conversion of the society into a company in accordance with section 112 of the Co-operative and Community Benefit Societies Act 2014. (2) The society must comply with sections 115 to 120 (as applied by subsection (3)) in relation to the proposed restructuring. (3) Sections 115 to 120 apply in relation to a proposed restructuring to which this section applies as they apply in relation to a proposed disposal to which section 107(4) applies, subject to the modification that section 115A(2) has effect as if, for paragraph (b), there were substituted—“(b)before notice of a meeting at which the special resolution is intended to be proposed is given under section 111 or, as the case may be, 113 of the Co-operative and Community Benefit Societies Act 2014,”. (4) In this section and section 97, “restructuring provision” means any of the following provisions of the Co-operative and Community Benefit Societies Act 2014— (a) section 109 (amalgamation), (b) section 110 (transfer of engagements), (c) section 112 (conversion into or amalgamation with registered company).

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• (4) For section 97 (restructuring of registered society) substitute—

(97) (1) This section applies in relation to a special resolution passed by the society for the purposes of a restructuring provision. (2) Where the restructuring to which the special resolution relates is one to which section 96A applies, the Financial Conduct Authority may register the special resolution only if— (a) the society confirms the matters mentioned in subsection (3), and (b) a copy of the confirmation accompanies the copy special resolution sent to the Financial Conduct Authority for the purposes of the Co-operative and Community Benefit Societies Act 2014. (3) Those matters are that, before the special resolution was passed— (a) the society complied with sections 115 and 115A(1) (as applied by section 96A(3)), and (b) a majority of tenants— (i) voting in a ballot conducted under section 115A(1)(a) wish the restructuring to proceed, or, as the case may be, (ii) whose written agreement to the restructuring was sought under section 115A(1)(b) have given that agreement. (4) The society must, as soon as reasonably practicable after sending the copy special resolution to the Financial Conduct Authority (and, in a case to which subsection (2) applies, no later than 28 days after doing so), give notice of the restructuring to the Regulator. (5) Any new body created, or to whom engagements are transferred, in pursuance of such a special resolution is to be included in the register (and is to be treated as so included pending such inclusion).

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• (5) For section 98 (voluntary winding up of registered society) substitute––