The Housing (Regulation of Approved Housing Bodies) Act 2019 provides for the regulation of Approved Housing Bodies (AHBs) for the purposes of supporting stronger governance and the financial viability of that sector, with a particular focus on safeguarding the significant public investment being made in the delivery of social housing by Approved Housing Bodies.
The Act provides for the establishment of the independent Approved Housing Bodies Regulatory Authority (the Regulator) and assigns the following functions to it:
- the registration of AHBs;
- setting standards for AHBs, subject to the approval of the Minister;
- monitoring and assessing compliance by AHBs with the standards prepared by the Regulator;
- undertaking investigations into AHBs, where necessary;
- the cancellation of registration of AHBs, where appropriate; and
- the right to seek Court orders to protect the assets of AHBs in certain circumstances.
The new regulatory structure replaces the current system established under section 6 of the Housing (Miscellaneous Provisions) Act 1992, which provides that the Minister may approve a body to receive assistance from local authorities for the provision of housing in accordance with the Housing Acts.
Approved Housing Body Regulatory Authority
The Act provides for the establishment of the Approved Housing Body Regulatory Authority (the Regulator) and sets out the functions and the organisational structure of the Regulator, the appointment of chief executive, staff, preparation of a strategy statement and other related matters.
The functions of the Regulator as follows:
- establish and maintain a register of AHBs,
- register persons as AHBs,
- prepare draft standards for approval by the Minister and publish the approved standards,
- monitor and assess compliance by AHBs with this Act, in particular the approved standards,
- carry out investigations
- intervene in the functioning and management of AHBs, and cancel the registration of AHBs
- , encourage and facilitate the better governance, administration and management, including corporate governance and financial management, of AHBs by the provision of such information and advice, in such form and manner, as the Regulator considers appropriate,
- with a view to promoting awareness and understanding of this Act, make available such information as appears to the Regulator to be expedient to give to the public about the operation of this Act, in such form and manner, as the Regulator considers appropriate,
- collect such information concerning AHBs as the Regulator considers necessary and appropriate for the purposes of the performance of the Regulator’s functions, and
- publish such information (including statistical information) concerning AHBs as the Regulator considers appropriate.
In carrying out its functions, the Regulator must have regard to the policies and objectives of the Government or any Minister of the Government in so far as they affect or may relate to the functions of the Regulator and also the need to co-operate with and coordinate its activities with other public authorities, the performance of whose functions may affect or relate to the functions of the Regulator. The Regulator shall be independent in the performance of its functions.
The Minister may make grants (with the consent of the Minister for Public Expenditure and Reform) to the Regulator out of moneys provided by the Oireachtas. The Regulator to charge fees (subject to the approval of the Minister) which must be reviewed at least every three years.
The chief executive will be appointed by the Regulator on the basis of a recommendation from the Public Appointment Service, following a competition undertaken in accordance with the Public Service Management (Recruitment and Appointments) Act 2004. Provision is also made for the competition to be held before the establishment day and for the appointment of a chief executive designate. The section also sets out the general terms and conditions on which the chief executive shall hold the office.
The Regulator may designate a member of the staff of the Regulator to perform the functions of chief executive in the absence of the chief executive or where the position of chief executive is vacant. The chief executive may, with the consent of the Regulator, delegate any of his or her functions to a specified member of staff of the Regulator, and that member of staff shall be accountable to the chief executive for the performance of the delegated functions.
The chief executive shall appear before the Public Accounts Committee when requested to do so by that Committee. The chief executive shall appear before a Committee appointed by either House of the Oireachtas (or jointly appointed by both Houses) when requested to do so by that Committee, to give account for the general administration of the Regulator. The chief executive shall not be required to give account before a Committee for any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State.
The Regulator may engage consultants or advisers to assist in the performance of its functions and pay their fees. There is a transfer of staff from the Housing and Sustainable Communities Agency (Housing Agency) to the Regulator and their terms and conditions of employment.
The Regulator is to prepare a strategy statement within 6 months of establishment day and thereafter every 3 years and sets out what should be included. There is an annual report on the performance of the functions and principal activities of the Regulator and that copies of the report will be laid before each House of the Oireachtas.
There is provision for administrative cooperation on regulatory matters, allowing for arrangements (by memorandum of understanding or otherwise) between the Regulator and other relevant regulators who may deal with AHBs in other contexts.
There is disclosure of information relating to offences. A body, including the Garda Síochána, the Revenue Commissioners, the Director of Corporate Enforcement, the Residential Tenancies Board, the Charities Regulator, the Health Information and Quality Authority, or any other person charged by law with the detection, investigation or prosecution of offences may, if they are of the opinion that an offence has been committed under the Act or if the Act has been contravened provide such information to the Regulator.
Information and Records
The Regulator has powers, where it is necessary for the purpose of performing its functions, to require an AHB to provide the Regulator with information, records or other documents in such form and manner as the Regulator may reasonably require.
There is provision for drafting and adoption of standards for registered Approved Housing Bodies. The Regulator shall submit to the Minister draft standards for registered Approved Housing Bodies covering the issues of governance, financial management and reporting, and property and asset management and tenancy management.
Draft standards prepared may make different provisions for different categories of registered AHBs taking into account the nature, scale and complexity of the activities of each category of AHB, the number of dwellings provided or managed by each category of AHB, and the level of financial risk associated with each category of AHB.
The Regulator before submitting the standards to the Minister for approval will publish them and allow 28 days for representations to be made. AHBs must comply with the standards. The Regulator shall review the standards from time to time and submit any changes the Regulator considers necessary to the Minister for approval.
Standards Assessment and Compliance Plans
The Regulator has the powers to monitor compliance by AHBs with the standards. Arising from the assessment, if the Regulator deems that the AHB is not complying with the standards it may require the body to draw up and submit a compliance plan.
The Regulator may undertake standards assessments. The Regulator may issue a notice to an AHB requesting it to submit to the Regulator information in a form and manner the Regulator requires, to enable the Regulator to carry out a standards assessment. The AHB is obliged to comply with such a notice.
The Regulator has to prepare a report on its standards assessment and send it to the AHB for any representations it may wish to make, within a reasonable time as specified by the Regulator. The Regulator must consider any such representations. The Regulator may extend the time for an AHB to make a submission if the AHB applies in writing for such an extension.
Following consideration of such submission the Regulator may issue a final report with or without amendments as it sees fit. An AHB that knowingly gives false or misleading information to the Regulator in course of an assessment will be guilty of an offence.
Where the Regulator, having completed a standards assessment, believes that the AHB is failing to comply with an approved standard the Regulator may issue a notice requiring the AHB to submit a compliance plan setting out how the AHB proposes to rectify the failure concerned. The plan must be set out in the form and manner determined by the Regulator and within the period specified by the Regulator. If the AHB fails to comply with these requirements it may be given a notice of non-compliance.
The Regulator may approve a compliance plan, approve it subject to conditions or reject it. If it proposes to reject a compliance plan, the Regulator must give the AHB notice of its intention to do so and advise the AHB it may appeal the proposed decision within 21 days. The AHB must comply with an approved compliance plan. Once a plan is approved the Regulator shall enter into the register that the plan is approved and include in summary form details of the measures to be taken to implement it.
A notice of non-compliance may be given. The notice of non-compliance will take effect where:
- no appeal is made before the expiry of the period for making an appeal;
- the AHB brings an appeal, and the decision of the Regulator is upheld, or the appeal is withdrawn or abandoned.
The Regulator will enter on the register details of non-compliance with an approved standard(s). An AHB may submit further compliance plans which the Regulator may approve or reject. An AHB may appeal a decision by the Regulator to reject the compliance plan within 21 days. If a compliance plan is approved, the entry in the register in respect of non-compliance with an approved standard is removed and an entry made stating a plan has been approved including details of the plan.
When the Regulator is satisfied that a compliance plan has been implemented it will notify the AHB and remove the entry made on the register. Where the Regulator takes the view that the AHB is failing to implement a compliance plan or is not implementing it in accordance with its terms the Regulator may issue a notice on non-implementation. The Act sets out the procedures the Regulator must follow in issuing such a notice, including allowing the AHB to make representations. The AHB may appeal a non-implementation notice to the Appeals Panel. The notice will take effect where:
- no appeal is made on the expiry of the period for making an appeal;
- the AHB brings an appeal, and the decision of the Regulator is upheld, or the appeal is withdrawn or abandoned.
The Regulator shall enter on the register details of a non-implementation notice. An AHB can apply to the Regulator to have such an entry removed. The Regulator shall remove such an entry where it is satisfied that a compliance plan has been implemented.
Part 5 of the Act provides the Regulator with powers to appoint inspectors and undertake investigations into the affairs and performance of AHBs. This Part also sets out the powers of the inspectors and the mechanism for the production of inspectors’ reports.
The Regulator may appoint members of its staff or other persons to be inspectors and the power to revoke such appointments. An inspector will have a certificate of his or her appointment, which he or she must produce when requested by a person affected by an investigation being carried out. It is an offence for somebody to purport to be an inspector if they have not been duly appointed or their appointment has ceased.
Where the Regulator considers it is necessary to do so it may appoint one or more inspectors to investigate the affairs of an AHB, and to prepare and submit to it an investigation report. The terms of appointment of an inspector may define the scope of the investigation to be carried out.
Inspectors may produce interim reports, if the Regulator directs. It also allows the inspector to bring to the attention of the Regulator any matter that may show that an offence has been committed. The Regulator may send a copy of an interim or investigation report to a range of appropriate persons, including other regulatory bodies or publish an interim or investigation report. In publishing a report, the Regulator may omit parts of the report where it considers it to be appropriate to do so.
An AHB shall, when required to do so by an inspector, provide all information and records relating to the AHB that are in its possession, under its control or that it can obtain and give to an inspector and all other assistance in connection with the investigation which the AHB is reasonably capable of giving.
An inspector may require a person whom he or she considers has any information or records relating to the affairs of the AHB to provide that information or those records and to give to the inspector such assistance in connection with the investigation as the person is reasonably capable of giving, at a place and within a time specified by the inspector. The inspector may have access to banks accounts. An inspector may, in the exercise of powers conferred on him or her, examine on oath a director, member, other officer or a member of staff or agent of the AHB, in relation to the matters to which the investigation relates.
An inspector shall have power to:
- at all reasonable times enter, inspect, examine and search any premises – which the inspector has reasonable grounds to believe are or have been used for, or in relation to, the affairs of the AHB, or in which the inspector has reasonable grounds to believe that records relating to the affairs of the AHB are kept;
- secure for later inspection any premises where records of an AHB are kept at that premises and require that the place or records be left undisturbed for so long as is reasonably necessary for the purposes of any investigation;
- inspect, examine and take copies of or extracts from any records or require that a copy of or extracts of records be provided;
- require the person to state, to the best of that person’s knowledge and belief, where the record is located or from whom it may be obtained, if a person who is required to provide a particular record is unable to provide it.
An inspector shall not enter a dwelling other than with the consent of the occupier, or pursuant to a warrant. An inspector may apply for the issuing of a warrant by the District Court.
An inspector’s report may be used as evidence in any proceedings. It an offence for a person to withhold, destroy, conceal or refuse to provide any information or records or fails or refuses to comply with any requirement of an inspector or otherwise obstructs or hinders an inspector in the performance of its functions. A person cannot be compelled to provide the inspector with information or records that are privileged.
Intervention powers can be afforded to the Regulator in respect of assets of an AHB where an offence has been committed, an AHB has failed or is failing to comply with any provision of the Act, there has been misconduct by director, officer or member of staff or the financial viability of an AHB is threatened.
Transfer of Certain Dwellings and Protection of AHBs
If a deemed AHB refuses to apply for registration after the relevant time period has elapsed or if registration is refused or if any AHB’s registration is in the process of being cancelled or is cancelled and the Regulator considers it necessary for the protection of tenants of dwellings, the Regulator may by notice require the AHB to transfer such dwellings to another AHB. The AHB must notify the relevant housing authority and any other person (other than the tenants of the dwelling) who has any interest in the dwellings. If the AHB or any third party concerned objects to the transfer, the Regulator may apply to the High Court for an order.
The Regulator may seek a High Court Order if he or she suspects that:
- an AHB has committed an offence under the Act;
- an AHB is failing to comply with provisions under the Act;
- an AHB is misusing or mismanaging property in such a way that endangers the property;
- there has been misconduct or mismanagement by a director or employee of an AHB in relation to its affairs;
- there has been unlawful or improper use of funds;
- there is a serious risk to the financial viability of the body;
- it is necessary for the purpose of the protection of the tenants of dwellings provided or managed by an AHB; or
- there is information indicating any of the above.
the Court may issue an interim, interlocutory or permanent order. Such orders may include
- cancellation of the registration of the AHB;
- removal or suspension of any director or officer or employee of the body;
- appointment of other people to be a director or officer of the body;
- vesting of any or all of the property of the AHB with another AHB identified by the Regulator;
- prohibiting the removal or sale of the property without the Regulator’s consent;
- non-payment by a debtor to the body for a specified period; or
- the restriction or prohibition of an AHB to enter any agreements.
The Act modifies Part 10 of the Companies Act 2014, which deals with examinership, for the purpose of applying that Part to AHBs. The modifications include
- allowing the Regulator either on its own or together with others entitled under the 2014 Act to petition the courts to appoint an examiner in accordance with section 509 of the 2014 Act;
- requiring an independent expert appointed under Part 10 to provide his or her report to the Regulator, in certain circumstances;
- requiring an Examiner appointed under Part 10 to provide his or her report to the Regulator, in certain circumstances;
- including in the list of responsibilities of an examiner under section 539, a requirement in relation to an AHB, that in drawing a compromise scheme of arrangements, proposals for the management or provision of dwellings are included to ensure those dwellings are used in accordance with the primary objective of the AHB;
- giving the Regulator the opportunity to consider any compromise scheme of arrangements in relation to an AHB;
- giving the Regulator the right to appear and be heard before a court where it is considering an examiner’s report; and
- including the Regulator in the list of persons or bodies to which a copy of a revocation order is given.
The Act provides for an AHB to submit appeals to an Appeals Panel where the Regulator exercises its powers in relation to compliance plans or registration.
The Minister shall establish an appeals panel to determine appeals. It sets out the qualifications and number of members, terms of office, grounds for removal of members and disqualification for appointment and the provision of resources to support the work of the panel. There is an Appeals Board to hear an appeal and the establishment of procedures in relation to an appeal by the Appeals Board. It also provides that the Board shall be independent in the performance of its duties.
The process that the panel should follow in considering an appeal is set out. It also provides that the panel shall be independent in the performance of its duties. A party to an appeal may appeal the decision to the High Court on a point of law within 3 months.
It is an offence for a member of the Regulator, staff member, inspector, adviser or any other person engaged under contract with the Regulator to disclose confidential information acquired during the course of performing their duties unless they are required to do so by law or with the Regulator’s permission. The does not prevent the disclosure of such information to the Regulator or a Minister of the Government by or on behalf of the Regulator or in compliance with provisions of the Act.
Certain assistance may be continued on cancellation of a registration on specified grounds.
Approved Housing Bodies Regulatory Authority
The schedule to the Act provides for the organisation and governance of the Approved Housing Bodies Regulatory Authority (the Regulator). Issues such as the appointment of the Board, the qualifications of Board members, tenure of office, and meeting procedures are included in the schedule. The Schedule also applies, with modifications, to the Appeals Panel.