Draft guidance note 17: Section 269 – Appointment of new officers (enforcement power)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 | no |
Type of power: enforcement power
The power
1 - This power enables the regulator to appoint one or more persons as an officer of a private registered provider.
‘Officer’ is defined in section 270 of the Act. Depending on the PRP’s legal structure or whether it is a registered charity, it can include a director, secretary, trustee, manager and member amongst others.
When the regulator will use this power
2 - Section 269(1) of the Act sets out the circumstances where the regulator may appoint an officer, which are:
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to replace an officer removed by order under section 266 of the Act
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where there are no officers
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in the case of a PRP which is a registered charity, registered society, or registered company, if none of the officers is a Board member [footnote 1]
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if the regulator is satisfied that the PRP has failed to meet a standard under section 193, 194 or 194C of the Act; or
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if the regulator is satisfied an additional officer is necessary to ensure that the PRP’s affairs are managed in accordance with legal requirements (imposed by or under an act or otherwise).
Process for using the power
3 - If the regulator is satisfied that one or more of the circumstances in section 269(1) of the Act have been met, it will:
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consider the appropriate number of officers to be appointed taking into account the requirements regarding numbers set out in section 269(2) of the Act; and
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identify persons with the appropriate skills, knowledge and experience.
4 - Once the regulator has decided the number and persons to be appointed as officer, it will issue an order to the PRP and such persons to be appointed specifying:
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the circumstances under which the appointment is being made
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the period of the appointment
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that the appointed officer(s) will have the same rights, powers and obligations as officers appointed by the PRP under its constitution – the regulator does not provide remuneration to appointed officers
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that the appointed officer(s) can resign at any point within the rules of the PRP’s constitution; and
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that the regulator can renew the appointment.
5 - The regulator will notify any relevant stakeholders, including the Charity Commission where the PRP is a registered charity.
6 - As with all powers, the regulator will consider whether it is necessary to exercise any other powers. Specifically, where an officer has been appointed and they have not vacated, the regulator will usually consider whether, in the circumstances of the case to direct:
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Homes England; and/or
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GLA not to give financial assistance to the PRP
under section 100G of the Act and section 333ZG of the Greater London Authority Act 1999 respectively.
Appeal process
7 - There is no statutory right of appeal under the Act. However, a PRP can appeal a decision to appoint an officer 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 regulator’s appeals scheme.
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‘Board member’ is defined in s.269(1A) of the Act. ↩