Decision

Decision statement: Consultation on statutory guidance under s215 of the HRA 2008 - February 2024

Updated 8 May 2024

Applies to England

Introduction 

1.1 It is a requirement under section 215(1)(b) of the Housing and Regeneration Act 2008 as amended (the ‘2008 Act’) for the regulator to publish guidance on how it uses and intends to use powers under Chapters 6 and 7 of the Act. Where the regulator intends to publish updates to its guidance it is also a requirement that it consults on these changes. 

1.2 On 7 November 2023, the Regulator of Social Housing published a consultation on revisions to its statutory guidance under section 215(1)(b) (‘S215 guidance’) of the 2008 Act to reflect amendments introduced by the Social Housing (Regulation) Act 2023 (‘2023 Act’). This consultation closed on 16 January 2024. 

1.3 This document provides a summary of the key areas of feedback and sets out our decision on the final S215 guidance. This document is not intended to cover all the responses received (all of which have been considered in reaching the conclusions set out in this Decision Statement), but a summary of the key issues and comments made. A list of respondents to the consultation, where they have given permission to be named, is provided at Annex 1.  

1.4 As a result of the consultation, limited changes are proposed to Guidance Notes 2,16 & 19 and these guidance notes can be found at Annex 2,3 & 4 of this document.  

1.5 The final version of the S215 guidance will come into effect on 1 April 2024 can be found at Annex 5  

1.6 The Business Engagement Assessment with equality analysis has also been reviewed. The final version is provided in Annex 6.

Executive summary

1.7 The Government published the Social Housing Green Paper, ‘A new deal for social housing’ in 2018 and subsequently the Social Housing White Paper, ‘The charter for social housing residents’ in 2020 all with the aim of improving how social housing is regulated. This culminated with the introduction of the 2023 Act having received Royal Assent and becoming law on 20 July 2023.  

1.8 The 2023 Act amends the 2008 Act, which sets the framework in which the RSH must operate and regulate the social housing sector. The 2023 Act introduces changes to our approach to consumer regulation, by giving us a new proactive role in the regulation of consumer standards which will build on our proactive role in economic regulation and help to ensure that landlords continue to deliver good quality homes and services to all their tenants and leaseholders.  

1.9 In addition to these changes, the 2023 Act introduced new powers and made a number of amendments to our existing powers, which required us to update our S215 guidance.   At the same time, we also decided to refresh the style, format and detail contained in the S215 guidance. The consultation comprised of one substantive question around the S215 guidance and a further question on our Business Engagement Assessment (including the equality analysis). This document presents the results of that consultation and questions it asked. 

1.10 In total we received 98 responses to our consultation and a positive response that our revised guidance is a reasonable basis on which to use the powers contained in the guidance. 

1.11 As a result of the consultation no changes have been proposed to Guidance Notes 1, 3 to 15, 17 and 18. 

1.12 There are limited changes to Guidance Note 2,16 and 19. These guidance notes can be found at Annex 2,3 and 4 of this decision statement respectively.

Overview

1.13 The consultation was the result of a number of legislative changes brought in by the 2023 Act. Most of the changes to the powers which this consultation concerns do not come into effect until 1 April 2024. The consultation provided an important opportunity for stakeholders to provide feedback to us in relation to the S215 Guidance. 

1.14 The consultation presented the regulator’s proposed updated S215 Guidance. The guidance is divided into different guidance notes and is intended to replace the current version of the guidance in force.  

1.15 The S215 Guidance was updated to:  

• reflect new powers that have been introduced and changes to the existing powers; and  
• refresh the style, format and detail.  

1.16 The regulator continues to incrementally adapt and improve its general approach to intervention and enforcement. We consider that the approach in the current version of the guidance which has been brought forward in the updated S215 Guidance gives the regulator flexibility to modify its approach depending on the circumstances of the case and to apply the most appropriate regulatory and enforcement strategy on a case-by-case basis in furtherance of our statutory objectives.  

1.17 As set out in the consultation, in most cases the use of powers will be following a period of intensive engagement with a registered provider, and therefore the provider will be sighted on the fact that the regulator is going to exercise powers. However, the regulator recognises there will be circumstances where it will need to act urgently and that may mean it is not possible to notify providers ahead of time. Therefore, the S215 Guidance does not impose a requirement to notify registered providers before exercising powers, other than where it is a statutory requirement. As a public body, the regulator will be guided by public law principles.  

1.18 The refresh to the S215 Guidance sets out general guidance as to the circumstances that may lead to the use of powers; and makes the guidance notes clearer and more succinct.

Summary of responses received

1.19 In total, we received 98 responses to the consultation. Overall, we received a positive response that the approach as set in the consultation was a reasonable basis on which to use our powers.  

1.20 Of the 98 responses, 85 were received via the online survey and 13 were in writing, predominantly via email. 

1.21 Of the 98 responses received: 

• 79% (77 responses) were from registered providers of social housing 
• 10% (10 responses) were from social housing tenants 
• 8% (8 responses) were from sector representative bodies 
• 3% (3 responses) were from others 

1.22 Some registered providers and sector representative bodies sought tenants’ views on the proposals and included tenant feedback within their responses. 

1.23 This Decision Statement includes the overall numerical response to the consultation questions. Percentages have been rounded to the nearest whole number and refer to the percentage of those who answered each question (rather than the total number of respondents to the consultation). Some responses were in narrative form and not all responses answered the specific questions asked. Therefore, the numerical analysis only includes those where the response can be attributed to a question asked. 

1.24 This Decision Statement is not intended to summarise all of the comments received but will address key themes which emerged in consultation responses having considered all responses received.

Consultation analysis

1.25 The consultation posed two questions for people to respond to.  

1.26 The focus of the consultation was to seek views as to whether the approach as set out in the consultation was a reasonable basis on which to use our powers and not to seek views on the individual powers. The 2023 Act has already received Royal Assent and so the Regulator has not considered changes to guidance in relation to comments linked to legislative changes that have happened and would require further changes to legislation.

Overview of response to consultation question 1

Consultation question 1
Does the proposed approach set out in the Statutory Guidance seem a reasonable basis on which to use these powers?

• Agree
  
• Disagree

1.27 Question 1: 94 respondents answered this question. Overall, the majority of respondents (85 respondents) agreed with nine respondents disagreeing.  

• Agree 85 (90%) 
• Disagree 9 (10%) 

1.28 Four respondents did not answer whether they agreed or not, so are not accounted for in these figures.  

1.29 For these four responses, we have examined them and allocated them to either ‘agree’ or ‘disagree’ depending on the overall content of the response. Of these four responses, three responses clearly indicated an agreement with our approach and one response has been taken as a disagreement with our approach. If these four responses are added into the overall response figures the final numerical response is as follows: 

• Agree 88 (90%) 
• Disagree 10 (10%)

Issues raised by the response to consultation question 1 and the regulator’s response 

1.30 69 respondents provided comments as part of their response to this question. Many of these focused on the legislative powers, rather than the S215 guidance, which was not the focus of the consultation.  As mentioned above, the regulator has not considered changes to the guidance in relation to comments linked to the legislative changes that have received Royal Assent. However, we have addressed these comments as part of our analysis and have set out below the main themes arising from these comments.  

1.31 As a whole, the comments received were very supportive of the new format of our S215 guidance. Comments indicated that the changes we had made helped to make it clear when and how we would use our powers.   

1.32 The following sections will address the main themes from the comments received.

Survey (Guidance Note 1) and Emergency Remedial Action (Guidance Note 6)

1.33 A large majority of the responses highlighted that they welcomed the stronger proactive focus on consumer regulation. These comments whilst not focused on the consultation question itself were aimed at the inclusion of the new powers given to the regulator allowing it to take action where there is a serious risk of harm.  

1.34 24 responses highlighted concerns that the emergency remedial action and survey powers may adversely affect tenants, particularly vulnerable tenants should authorised persons attend to undertake a survey or emergency repairs without sufficient notice or regard to tenants’ individual needs. Some respondents suggested that when using these powers, a representative of the registered provider should be in attendance with the person authorised to undertake the survey or carry out the emergency remedial action to reassure the tenant and act as a point of reference for the tenant. It was also suggested that this may help if any follow-up activity was needed following a survey or emergency remedial action being carried out. Some respondents suggested that further detailed guidance and/or criteria should be provided by the regulator as to when it would use these powers.  

1.35 The regulator anticipates that these powers will be used in circumstances where the health and safety of tenants is at imminent or serious risk. Where the regulator exercises these powers without a warrant, a pre-entry notice must be given to both the registered provider and tenant(s); in the case of a survey, at least 48 hours’ notice is required and in the case of emergency remedial action, 24 hours’ notice must be given. Where these powers are exercised with a warrant, this requires an application to Court and the registered provider will be aware of this. The regulator considers that this will allow a registered provider sufficient time to liaise with the tenant(s) concerned and make any necessary arrangements to ensure their needs are addressed, including   having a representative from the registered provider or other appropriate person attend during the survey or emergency remedial action. 

1.36 The regulator has considered the request for further detailed guidance and/or criteria as to when these powers will be used. However, we do not think it would be appropriate to be too prescriptive as this could fetter the regulator’s ability to use its powers and consider the individual circumstances of each case to help it achieve the most appropriate solution in each case.

Compensation (Guidance note 8)

1.37 Ten respondents commented on this power. The most common request was for further clarity and/or guidance as to the levels of compensation that may be awarded and the circumstances it may be used in.  

1.38 In addition, there were requests for co-ordination between the regulator and the Housing Ombudsman (which also has the power to award compensation) to avoid circumstances where registered providers have to pay double compensation for the same issue. There were also calls to ensure that the amounts of compensation set by both organisations were in the same range.  

1.39 We do not consider it would be appropriate to be too prescriptive in relation to the amounts of compensation we may award, as we will need to consider the individual circumstances of each case, which requires us retaining the flexibility to make awards dependent upon the circumstances. 

1.40 Section 239(1) of the 2008 Act, which is reiterated in Guidance Note 8, makes it clear that the regulator may not award compensation for a matter where the Housing Ombudsman has already made an award. We work closely with the Housing Ombudsmen under a Memorandum of Understanding and will continue to communicate and share information with them, including where we are considering making an award of compensation.

Penalties (Guidance note 7)

1.41 This power received the most feedback from the consultation with 25 respondents commenting on it. Whilst much of the feedback was in relation to the reasonableness of the power itself, and as such outside the scope of the consultation, there were requests for guidance about the circumstances in which this power would be used.  

1.42 The main theme expressed by respondents was around the fact that the legislation allows the regulator to impose penalties that can be unlimited in amount. Some providers commented that any penalties imposed would indirectly be paid for by the tenants through their rent and would take away much needed funds from the upkeep and development of their social housing.  

1.43 In contrast to this, some providers reacted positively to this power and acknowledged that it has been available to the regulator since 2008. It was also acknowledged that the increase in the amount of penalty that can be imposed from a maximum of £5000 to unlimited would have a deterrent effect.  

1.44 The regulator acknowledges the range of views expressed in the consultation.  However, as set out in Guidance Note 7, the regulator will consider the individual circumstances of the case in deciding the amount of the penalty to impose, thereby ensuring it is being proportionate and fair.  

1.45 We also consider that the pre-penalty notice, and the ability for providers to make representations, along with the statutory right of appeal provide the appropriate and necessary routes for a provider to voice any concerns as to the amount of penalty and whether it should be imposed.   

1.46 Where the regulator considers issuing a penalty, there will be a unique set of individual circumstances taken into consideration (as set out, but not limited to those in the guidance note). As a result, at this stage, we do not propose to take a formulaic approach when it comes to determining penalty amounts and do not intend to issue a schedule detailing penalty amounts that will be imposed in different scenarios.

Performance improvement plans (Guidance note 4)

1.47 There was a range of feedback in the consultation responses relating to this new power.  Again, much of this feedback was in relation to the introduction of the power itself and not the guidance note concerning it.  

1.48 The feedback on PIPs was mainly very positive with the majority of providers welcoming their introduction. The main area where providers wanted further clarity was in relation to the circumstances where PIPs will be used. A small number of respondents wanted more clarity on the interaction between PIPs and voluntary undertakings.  

1.49 As we have stated throughout this decision statement, we will take into account the individual circumstances of each case. As a result, we do not propose to include further detail about the circumstances where we will require a provider to produce a PIP, as we do not wish to restrict our ability to use this power.  Neither do we propose to include detail about the interaction between PIPs and voluntary undertakings, as different circumstances will dictate using this power over accepting a voluntary undertaking and vice versa.

1.50 There was specific feedback on the text of paragraph 4 of Guidance Note 4 where it states: 

‘Once a performance improvement plan is submitted, the regulator will consider it, and either approve or reject the performance improvement plan. If rejected, the regulator must give its reasons for doing so and this will be considered as a failure to comply with the PIP notice.’

1.51 Two respondents considered that following the rejection of a PIP by the regulator there should be a further period of time built into the process to enable the provider to address the regulator’s concerns.  

1.52 In most circumstances, the regulator will have engaged with a provider prior to using this power, and so it is highly likely a provider will be aware of the issues which need to be addressed, which should therefore help to reduce the likelihood of a PIP being rejected. Furthermore, as a public body, the regulator is guided by public law principles and is required by its statutory objectives to be proportionate; as a result, should there be any areas in a PIP notice which a provider requires clarity on, it will have the opportunity to raise this with the regulator.   

1.53 There were a number of calls from providers that all PIPs be published (with an inference that this should be done by the regulator). We have considered this point and are satisfied the 2008 Act will ensure that all providers subject to a PIP will be required to publish their PIP in the manner specified by us. We consider that it is only right and proper that a registered provider should be responsible for publishing a PIP, given that their stakeholders including tenants are most likely to access their website rather than the regulator’s.  As is clear from the introduction to the S215 guidance, the regulator may choose to publish a statement where we use our powers and therefore may choose to publish information about a PIP.  

1.54 There was also a call for the regulator to specify a timeframe during which it would approve or reject a PIP. We do not consider it helpful to impose further requirements beyond those specified in the 2008 Act, as some PIPs will require lengthier consideration by the regulator than others. With this in mind, we will always endeavour to approve or reject a PIP at the earliest opportunity and will deal with each case and provider on an individual basis so they are clear when they can expect a response.  

1.55 There were 22 comments inquiring about the process around the regulator informing the Charity Commission where it has required a provider also regulated by them to submit a PIP and how this interacts with the Charity Commission’s duties in their regulation of registered providers in the charitable sector.  

1.56 It is acknowledged that as with the use of any power by the regulator in respect of a provider also regulated by the Charity Commission, the Charity Commission may need to investigate to decide if regulatory action under their framework is necessary where the regulator decides to require a PIP.  Currently, the regulator works closely with the Charity Commission to ensure we are communicating with them and sharing important information with them.  We intend to continue this ongoing dialogue.

Inspections

1.57 Whilst we did not receive any material comments in relation to this specific power, we have made some changes which are highlighted in Annex 2 to ensure that the language used in this guidance note is consistent with the regulator’s inspection plan and other published guidance.

Extension of powers to charities which have not received public assistance

1.58 There was some limited feedback in the consultation about some of the regulator’s enforcement powers being extended to charities which have not received public assistance. Along with this, the 2023 Act imposed a requirement on the regulator to notify the Charity Commission where it exercises certain enforcement powers.   

1.59 Two of the responses indicated that they felt it was disproportionate to extend these powers to charities where they had not received public assistance, whilst a respondent welcomed the extension of these powers in this way.  

1.60 Whilst we acknowledge the views of the respondents, the extension of the powers in this way is a matter of legislation and not within scope of this consultation. 

1.61 We will work closely with the Charity Commission to explore the notification requirements for these extended powers in detail.

Wording of the guidance

1.62 Three respondents suggested that the wording of the S215 guidance could be amended to make it more accessible to all people with an interest in social housing, whilst acknowledging that the guidance is primarily aimed at registered providers of social housing and their advisors. We have considered this in detail and have concluded that we cannot further simplify the language used in the S215 guidance. 

1.63 The S215 guidance is written to reflect the powers as set out in the 2008 Act.  Due to this, the regulator has tried to keep the language in line with the wording used in the legislation to avoid any misinterpretation. The regulator acknowledges that some of the language used in the S215 guidance is technical, but given the intended audience of this document, we feel that it strikes the right balance for providers and their advisors.

1.64 The S215 guidance is part of the suite of documents published by the regulator which sets out the framework under which we will regulate. Further publications issued by the regulator such as ‘Regulating the Standards’ are aimed at a wider audience and as such, are less technical in nature. 

1.65 It is important to note that a number of consultation responses highlighted how they considered that the S215 guidance was clearer, more succinct and easier to understand than the version currently in force and last updated in December 2019. The regulator welcomes such feedback, as this was our intention in refreshing the document.

Insolvency and moratorium powers (Guidance note 19)

1.66 We have received very detailed feedback on Guidance Note 19 which relates to insolvency and moratorium powers.  These are set out in the table below:

Comment/paragraph	Suggestion	Response
Paragraph 9 of GN19 says “a moratorium ends when 28 days has passed beginning with the day on which the regulator is given notice by the PRP pursuant to sections 104-108 of the HPA 2016”.	We believe this is inaccurate as the notice may have to be given by a party other than the PRP . The Regulator may therefore wish to delete “by the PRP”.	We accept this change and will delete ‘by the PRP’
‘…the 28 day period begins on the relevant day specified in section 145(2B) of the Act which we take to mean when the notice is received by the Regulator in the requisite form (e.g. as specified in section 104(2A) of the HPA 2016).   We note the Regulator can choose to treat a non-compliant purported notice as given correctly and start the time running from the date of receipt of the purported notice (e.g. under section 104(2C) of the HPA 2016).’	We believe it would be helpful if the Regulator could give an indication in GN19 of what its approach would be to treating a non-compliant purported notice as given correctly and starting the time running from the date of receipt of the purported notice. This could clarify for PRPs and secured creditors when the “28 day” moratorium would be likely to end.	Paragraph 10 makes it clear that notices must comply with the requirements of 104-108 of the Housing and Planning Act 2016 (HPA 2016). These sections provide further detail about the form notices must take.  As we state in the introduction to the S215 guidance, the guidance should be read in conjunction with the 2008 Act and any referenced legislation. It is not intended to be a substitute. Those providing notice are expected to be aware of the legislative requirements to ensure their notice is compliant and seek legal advice if they consider necessary.  The regulator does not consider it necessary to set out the approach it will take where it decides to treat a non-compliant notice as being given correctly, or when time starts to run. This is because the relevant sections of the HPA  2016 make it clear that if the regulator decides to treat a non-compliant notice as having been validly given (which it can do by giving notice in writing), time will start to run from when the non-compliant notice was given. In any event, the regulator will communicate with the provider concerned when it deems the moratorium to end.  It will be for the provider to ensure this is communicated to its secured creditors.
Mortgagee exclusion clauses put in place before housing administration was introduced or put in place since then where the parties were not aware of the issue, do not cover a disposal by a housing administrator (other than those in section 106 agreements by virtue of section 103 of the HPA 2016).   So there is a risk that if a housing administrator disposed of a property, that disposal would not release the property from affordable housing restrictions, and this might reduce the value of the property from MVSTT to EUVSH. In some parts of the country this reduction would be significant, and any such down-value would impact on asset cover so less money could be secured and ultimately less money may be available for investment in housing stock.	We believe it would be helpful to expressly state this in the “Housing administration order” section of GN19 (noting this could be caveated by the Regulator stating this was only an indicative example and decisions would be made on a case-by-case basis). This could give secured creditors more confidence that the full value of their security could be realised in the housing administration process.	We have considered this, but do not propose to add the suggested text to GN19.  As we make it clear in GN19, we will consider each case on its precise facts when deciding whether to make an application for housing administration.  Where an application for housing administration is made by the regulator, the housing administrator will be in control of the process, and it will be for them to decide the appropriate course of action in each specific case.  It is worth highlighting that as part of the housing administration application, the regulator will identify the person they propose to appoint as housing administrator who must be a qualified insolvency practitioner. Factors such as professional expertise and experience will all be considered in the selection process. As such, we would expect that any housing administrator appointed will be aware of such issues.
Notice of housing administration	We presume the RSH would in fact make efforts to give notice to secured creditors of a housing administration order (even when not expressly required under the HPA 2016) as it would of a moratorium and believe it would be helpful if this could be stated in GN 19.	This is not a requirement of the 2008 Act or the HPA 2016, therefore we do not propose to add this to GN19.  In practice, we would of course seek to inform all secured creditors so far as is reasonably possible.
Paragraph 2 of GN 19	Might the Regulator like to add “(save certain exempted disposals)” after “PRP’s land” in the penultimate line for clarity.  We note the Regulator has referred to these exempted disposals in paragraph 8.	We will add this.
Paragraph 8 of GN19 - first bullet paragraph (i)	We think some text may have been omitted from the end of the paragraph (perhaps “an amount specified by the GLA or Homes England (as applicable)”)	We will add this.
Paragraph 8 third bullet [of GN19]	Might the Regulator like to add “by a not-for-profit PRP” after “single dwelling” in the penultimate line as section 150(2) of the Act applies only to non-profit registered providers	We will make this change.
Paragraph 9 [of GN19]	Was it intended that there should be a bullet before the existing one, saying “a housing administration order is made; or”?	We will make this change and also have also included another bullet point to make it clear, that a moratorium may be extended by the regulator.
Paragraph 40 [of GN19]	Might the Regulator like to amend along the following lines noting section 147(1)(b) of the Act refers to a further notice being given rather than an insolvency event occurring:  ‘…and further notice of an insolvency event under section 145(2) occurs is given within 3 years…’	The Social Housing (Regulation) Act 2023 (Consequential and Miscellaneous Amendments) Regulation 2024 has been laid before Parliament and is proposing to amend section 147(1)(b) of the 2008 Act to refer to an insolvency event in section 145(2) occurring, rather than further notice of an insolvency event being given.  We do not yet know when it will receive approval. However, we do not propose to make this amendment, given the proposed change will ensure section 147 is in line with section 145. We will keep the position under review.
Paragraph 41 [of GN19]	We think there is some duplication so “have been located” could be deleted from the penultimate line	We will make this change

1.67 The feedback received above has led to some minor changes to GN19. Which appears at Annex 5 with the tracked changes highlighted.

Miscellaneous issues

1.68 There were a number of other issues raised during the consultation and these are set out in the table below with our response.

Issue (Paraphrased where necessary for brevity)	Response
We believe the thrust of the powers undermines confidence in the Regulator’s ability to maintain co-regulatory approach to regulation and creates a more confrontational dynamic	We do not consider that the amendments to the existing powers and introduction of new powers undermine the regulator’s co-regulatory approach. As is made clear in the introduction to the S215 guidance, in line with the co-regulatory approach we take, in most circumstances where the regulator decides to use its powers, there will have been a period of intensive engagement with the provider, so as to allow them to make self-improvements. However, this will not always be possible in circumstances where there are serious or urgent issues, which require swift attention.
Sections 206-210A – Inquiry and extraordinary audit (regulatory power). We feel that the wording of paragraph 7 (fourth bullet point) ‘there may have been a fraud’ could be more precise.	We have considered this point, but do not propose to expand further on this as we consider the term ‘fraud’ to be self-explanatory. The wording below this paragraph makes it clear that the list on which this point features is non-exhaustive and there may be other circumstances which justify an extraordinary audit being carried out. As has been stated throughout this decision statement, we will consider the individual circumstances of each case.
We would welcome acceptance by the Regulator that a timely review will be undertaken within say the first 24 months of these new powers going live to ensure that such new powers have indeed been introduced proportionately.	As set out in the introduction to the S215 guidance, the regulator has robust internal processes to ensure that checks and balances are applied before a decision is made to use its powers. We are also mindful of our fundamental objectives to exercise our functions in a way that minimises interference and (so far as possible) is proportionate, consistent, transparent and accountable. We are confident this will ensure we are using our powers proportionately.
We are concerned that considering the complexity of some of the changes to the Statutory Guidance that a shortened consultation with two questions is not a true reflection of what is required.	The majority of the amendments made to the S215 guidance have been to reflect changes introduced by the 2023 Act. As explained above and in the consultation document, the scope of the consultation document was to comment on whether the approach as set out in the S215 guidance was a reasonable basis upon which to use our powers. The legislative changes introduced by the 2023 Act have received Royal Assent and were not within scope of the consultation. We also made other amendments to the S215 guidance to refresh the content to make it more succinct and clearer. The consultation questions are in line with the approach we have taken on past consultations in relation to previous updates of the S215 guidance, as was the timeframe during which the consultation was open. The consultation document and consultation process has been developed to adhere to the Consultation Principles issued by the Cabinet Office.
Need to take VFM into account when using powers – since new fees approach.	The regulator undertakes a number of checks and balances before a decision is made to use its powers, which helps the regulator to assure itself that it is acting proportionately.
Is the power of Inquiry and Extraordinary Audit applicable to both economic and consumer regulation?	Amongst other grounds, the power to hold an inquiry is available where a registered provider has failed to meet or is at risk of failing to meet either economic or consumer standards. The nature of the extraordinary audit power means that it will be used where there are concerns in relation to financial matters.
We would welcome further guidance of when it is expected we would self-report an issue to the regulator or clear criteria for when to make a self-report	The circumstances in which a provider needs to self- report is set out in Regulating the Standards. It is for boards/councillors to make the decision about when to self-report based on this guidance.
It may be the case that a duty and obligation for an RP to publish details of certain types of engagement with/by the Regulator would be useful.   Commercial and personal confidentiality considerations would of course need to apply, but we suggest that publicising details of matters such as self-referrals or the use of enforcement powers would not be unreasonable	Whilst we understand the rationale for publicising matters such as self-referrals or the use of all regulatory and enforcement powers, this is not the subject of this consultation. From time to time, we will publish statements where we use our powers. However, we will consider this comment further internally.
The word ‘Officer’, as defined in section 270 of the Housing and Regeneration Act 2008, would appear to mean board member /trustee / company director, but Guidance Note 17 says it can include director, secretary, trustee, manager and member among others - this same text should be in note 16.	This is correct. Section 270 of the 2008 Act cites provisions of the Co-operative and Community Benefit Societies Act 2014 and Companies Act 2006, which expand on the definition of ‘Officer.’ Footnote 1 in Guidance Note 16 cites section 270 of the 2008 Act, where the definition of officer can be found. Notwithstanding this, for ease of reference, we shall include the same text in Guidance Note 16 which can be found at Annex 3. It should be noted, however, that as is made clear in the introduction to the S215 guidance, it should be read in conjunction with the 2008 Act and other referenced legislation, as it is not intended to be a substitute.
Guidance Note 17 states that Board members are defined in section 269, 1A of the Housing and Regeneration Act but we are not sure that is the correct reference.	The reference to section 269(1A) is correct. It is a new provision which has been inserted into the 2008 Act by the 2023 Act. Such provision comes into force on 1 April 2024.
The Guidance Note provides clarity on when a moratorium ends - 28 days after the RSH is given notice by the RP of trigger event, unless the RSH has cancelled the moratorium in the meantime.  However, the note does not provide clarity in relation to extending or imposing a further moratorium.	We have updated Guidance Note 19, under the ‘ending a moratorium’ to make it clear that a moratorium may be extended. Guidance Note 19 does refer to the fact the regulator may impose further moratorium. Due to the fact we will consider each case on its individual circumstances it would not be possible to provide an exhaustive list as to the circumstances in which the regulator would extend or impose a further moratorium. Moratoriums are complex in their nature, and we have made it clear that the 2008 Act and any referenced legislation referred to should be read in conjunction with the S215 guidance.
Section 218A(1) of the Act sets out the grounds under which the regulator can use this power. These grounds are: a. where the registered provider has failed to meet a standard under sections 193, 194, 194A or 194C of the Act” Could the standards referenced in this paragraph be listed in the guidance instead of or as well as the relevant sections of the Act?	We do not consider that it is necessary to add each standard into the document. This is particularly given that sections 194A and 194C are new provisions introduced by the 2023 Act. The economic standards under section 194 are readily available on our website.  The consumer standards under section 193 have recently been subject to a consultation - see outcome As standards could change over time, their inclusion may cause the S215 guidance to be out-of-date pending revision. Mirroring the drafting of the 2008 Act enables us to avoid this issue.
The proposals weaken the independent status of housing associations and may trigger reclassification as public entities.	The classification of housing associations as public or private bodies is a matter for government and outside the scope of this consultation.
As it currently reads, the regulator has the power to order an amalgamation with no right of appeal – this cannot be fair or equitable	This power can only be exercised as a result of an inquiry under section 206, or extraordinary audit under section 209 of the 2008 Act.  Where these powers are exercised, a provider will have the opportunity to respond to any findings before the regulator considers what further action may be required. This helps to provide additional accountability. Of course, as a public body, the regulator will also be guided by public law principles and will have regard to its fundamental objectives should it choose to exercise this power.
One response fundamentally disagreed with the regulator’s ability to use the new powers as set out in statute. The response called for our authority to use the powers to be constrained via a range of suggestions set out in the response.	The legislative changes introduced by the 2023 Act have already received Royal Assent and are therefore outside the scope of the consultation. However, as has been made clear, the regulator will be mindful of its fundamental objectives and public law principles when deciding whether to exercise its powers.

1.69 As stated earlier in this decision statement, we have not been able to respond individually to all comments received in response to the consultation but are confident we have addressed all pertinent issues raised and considered all comments received.

Overview of response to consultation question 2 – Business Engagement Assessment (‘BEA’)

Consultation question 2
Do you have any comments on business engagement assessment (including the equality analysis) at Annex 3?

• Yes - please explain
• No

1.70 20 respondents answered this question. Overall, the majority of respondents’ comments were fully supportive of the BEA as presented.

1.71 Two respondents highlighted that they considered the new powers would have a large financial impact on registered providers and that the BEA should have taken these financial burdens into account.  Our assessment looked at the impact of our guidance and not the legislative changes themselves, given this was outside the scope of the consultation. As such, we stand by our assessment that we believe there to be negligible impact on the regulatory burden because the changes do not fundamentally alter existing regulatory expectations in this area.

1.72 There were also two respondents who questioned the assertion in the equality analysis that the regulator had not identified any equalities implications as a result of the changes set out in the consultation. These respondents pointed out that how the regulator implements the new powers certainly has equality implications and that these should have been addressed in the form of an Equality Impact Assessment.

1.73 We maintain that we do not consider there to be any equality impacts arising from the update of our S215 guidance. However, we are mindful that equality impacts may arise where we exercise our powers and can confirm that this is considered, on a case-by-case basis as part of the checks and balances we undertake before a decision is made to use our powers.

The regulator’s response to the consultation feedback and final position

1.74 The previous sections set out and sought to address the main areas of feedback that we received as a result of the consultation. It also outlines any areas of change to the S215 guidance following the consultation.

1.75 There have been only a limited number of comments that have resulted in changes to the S215 guidance that we consulted on. All changes as a result of the consultation are presented as tracked changes in Annexes 2-5. We have made no changes to the other sections of the S215 guidance. A final version of the s215 guidance appears at Annex 6.

1.76 We received a positive response to the BEA and there were no additional relevant issues identified with the equalities analysis. As a result of this, no changes are being proposed to the BEA, other than to update it to reflect the current position and make it clear consultation responses have been considered. The final BEA can be found in Annex 7.

1.77 The revised final S15 guidance, as set out at Annex 5, will take effect from 1 April 2024.

Annexes to the decision statement

Accessible (HTML) versions of the annexes below and the Decision Instrument are available on the RSH consultation webpage).

• Annex 1: List of respondents to the consultation.
• Annex 2: Guidance Note 2 as amended following the consultation
• Annex 3: Guidance Note 16 as amended following the consultation
• Annex 4: Guidance Note 19 as amended following the consultation
• Annex 6: Final business engagement assessment

Information for annex 5 - Final s215 guidance can be found on the Section 215 Guidance page