Consultation outcome

Draft guidance note 1: Sections 199-200 – Survey (regulatory power)

Updated 29 February 2024

Applies to England

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Applicable
PRP (For profit) yes
PRP (Not for profit) yes
PRP (Registered charity) yes
Local authority yes

Type of power: regulatory power  

Scope 

1 - This power enables the regulator to authorise a person (‘authorised person’) to enter a registered provider’s social housing with or without a warrant to carry out a survey of the condition of premises. The regulator may require the registered provider to pay some or all of the costs of the survey and associated report.  

2 - An authorised person may be a member of the regulator’s staff or other person who has been given written authorisation by the regulator. 

3 - An offence will be committed where an authorised person is obstructed from exercising its powers by a registered provider, its officers or other persons (including tenants).  

4 - Whilst ‘premises’ is not defined in the Act, the scope of the survey can include both dwellings [footnote 1] and any common parts [footnote 2].

When the regulator will use this power 

5 - Section 199(1) of the Act provides that the regulator can use this power when it suspects that a registered provider may be failing to maintain premises in accordance with standards under section 193 of the Act. 

6 - Circumstances where the regulator may use this power include:

  • a potential problem in design, construction or condition which may impact across a registered provider’s social housing stock where there are reasonable grounds to suspect this represents a safety risk to tenants; or 
  • a survey is necessary as part of the exercise of the regulator’s wider regulatory or investigatory powers such as an inspection 
  • a scenario where the regulator may use this power is in cases where the registered provider has been unable or unwilling to provide adequate assurance to the regulator.

Process for using the power 

Power to enter without a warrant (section 199A)

7 - If the regulator is satisfied that the requirements at section 199(1) of the Act have been met, it will arrange for a survey to be undertaken. This will include: 

  • identifying the authorised person who will undertake the survey and providing them with written authorisation; and 

  • briefing the authorised person on its concerns in relation to the condition of the social housing.  

8 - The authorised person will be permitted to enter premises at any reasonable time, or times, to undertake a survey without a warrant provided they have given at least 48 hours’ notice to both the registered provider and the occupier(s) where the premises are occupied, unless this is waived. Notice to occupiers may be given by attaching it to a conspicuous part of the premises. 

9 - The authorised person may, if they consider it necessary to carry out the survey, be accompanied by other persons and take onto the premises equipment and materials. Such equipment and materials can be left in a place on the premises provided that: 

  • leaving the equipment or the materials in that place does not significantly impair the ability of an occupier to use the premises (including any common parts); or 
  • leaving the equipment on the premises is necessary for carrying out the survey and it is not possible to leave it in a place that does not significantly impair the ability of an occupier to use the premises (including common parts). 

10 - The authorised person will provide a report to the regulator, and, in turn, the regulator will provide the registered provider with a copy.  

11 - Upon receipt of the report, the regulator will consider whether emergency remedial action is necessary, or whether other enforcement powers, regulatory powers or general powers should be exercised.

Power to enter without a warrant (section 199B) 

12 - Section 199(B) of the Act sets out the circumstances where a justice of the peace may issue a warrant allowing an authorised person to enter the premises to carry out a survey. These circumstances are: 

  • where entry to the premises has been sought under section 199A is refused
  • where the premises are unoccupied or the occupier is temporarily absent, or  
  • where there are reasonable grounds to believe that the authorised person will not be able to obtain entry without a warrant. 

Appeal process 

13 - There is no statutory right of appeal under the Act. However, a registered provider can appeal a decision to arrange a survey and/or to require it to pay the costs of a survey, under the regulator’s appeals scheme (‘regulator’s appeals scheme’). Appeals must be made within the timescales set out in the scheme. Further details about the appeal process are set out in the regulator’s appeals scheme.

  1. Dwelling is defined in s.275 of the Act and means:  a house, flat or other building or part of a building occupied or intended to be occupied as a separate dwelling; and includes any garden, yard, outhouse or other appurtenance belonging to, or usually enjoyed with, the dwelling. ↩

  2. The regulator considers ‘common parts’ is included within the definition of ‘dwelling.’ It is defined in s.199(10): ‘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. ↩

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