Draft guidance note 12: Section 252A – Appointment of advisers to local authorities (enforcement power)
Updated 29 February 2024
Applies to England
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| Applicable | |
|---|---|
| PRP (For profit) | no |
| PRP (Not for profit) | no |
| PRP (Registered charity) | no |
| Local authority | yes |
1. Type of power: enforcement power
2. The power
1 - This power enables the regulator to appoint, or require the local authority to appoint, one or more advisers to provide advice to assist the local authority to manage the entirety of its social housing affairs or specific aspects of its social housing.
3. When the regulator will use this power
2 - Section 252A(2) of the Act sets out a number of grounds under which the regulator can use this power. These grounds are:
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that it is necessary to exercise it for the proper management of the local authority’s affairs so far as they relate to the provision of social housing
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that it is desirable to exercise it in the interests of securing better services for the local authority’s tenants
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that the local authority
i) does not have a health and safety lead designated under section 126A of the Act, or
ii) has failed to meet a requirement under section 126C(1) of the Act -
that the functions of the health and safety lead are not being carried out
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that the local authority has failed to meet a standard under section 193, 194 or 194C of the Act; or
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that the local authority has failed to comply with a performance improvement plan notice.
4. Process for using the power
3 - If the regulator is satisfied that one or more of the grounds as set out in section 252A(2) of the Act apply, the regulator will decide whether to make the appointment itself, or to require the local authority to make the appointment. In making this decision, the regulator will consider all the circumstances of the case including but not limited to:
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the local authority’s ability and willingness to make the appointment
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whether the circumstances require the appointment to be made urgently.
4 - The regulator will also decide the scope of the role (i.e. whether they are required to manage the entirety of the registered provider’s social housing affairs, or specific aspects of them).
5 - Depending on whether the regulator is making the appointment itself or requiring the local authority to make the appointment, the regulator will either decide itself or determine the process for agreeing:
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the terms and conditions under which the adviser(s) will be appointed including remuneration - the local authority will be expected to remunerate the adviser(s), however in agreeing such costs, the regulator will act reasonably, and take into to account relevant factors including market rates for such advisory services
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who is to be appointed as the adviser(s) – factors including professional expertise, experience and availability will be considered.
6 - The regulator will provide written notification to the local authority of its decision to make the appointment(s) or require the local authority to make the appointment(s). Such notification will provide details of the matters referred to at 5 and 6 above, or the process for agreeing the matters at 6 above where the local authority is required to make the appointment.
5. Appeal process
7 - There is no statutory right of appeal under the Act. However, a local authority can appeal a decision of the regulator to appoint adviser(s) or require the local authority to do so, under the 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 appeals scheme.