Guidance Note 14: Section 255 – Amalgamation
This note is part of the statutory guidance under s215 of the HRA 2008 (from 1 April 2024)
Applies to England
| Applicable | |
|---|---|
| PRP (For Profit) | no |
| PRP (Not For Profit) | yes |
| PRP (Registered Charity) | no |
| Local Authority | no |
Type of Power: enforcement power
Scope
This power enables the regulator to require two not for profit private registered providers which are registered societies to amalgamate.
When the regulator will use this power
Section 255(1) of the Act sets out three specific grounds under which the regulator may exercise this power. They are where, as a result of an inquiry under section 206 of the Act or an extraordinary audit under section 210 of the Act, the regulator is satisfied that:
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the affairs of a NPRP have been mismanaged in relation to social housing
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the management of social housing owned by a NPRP would be improved if the NPRP were amalgamated with another NPRP; or
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the NPRP has failed to meet a standard under section 193, 194 or 194C of the Act.
Process for using the power
If, after considering findings following a statutory inquiry or extraordinary audit of a registered society (‘NPRP1’), the regulator is satisfied that the grounds in section 255(1) of the Act are met, the regulator will identify a suitable NPRP which is a registered society (‘NPRP2’) for NPRP1 to amalgamate with.
In assessing NPRP2’s suitability, the regulator will consider all relevant factors including but not limited to:
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the quality and management of NPRP2’s services to residents;
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the quality of NPRP2’s governance systems;
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NPRP2’s financial viability;
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NPRP2’s general regulatory compliance; and
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NPRP2’s management and financial capacity.
NPRP2 will be expected to take the amalgamation forward and this shall be overseen by the regulator. This process will involve but is not limited to:
- NPRP2 undertaking due diligence;
- both NPRP1 and NPRP2 consulting with relevant stakeholders and obtaining any necessary consents;
- NPRP2 preparing a business plan and the governing document (‘rules’) for the registered society created by the amalgamation (‘NPRP3’) for approval by NPRP1 and the regulator;
- both NPRP1 and NPRP2 preparing a report setting out all the details for the amalgamation, which also covers the outcome of the consultation and due diligence, business and operational planning for NPRP3 and the new rules for NPRP3.
If the regulator agrees to the proposal for amalgamation, it will seek the Secretary of State’s consent.
Following receipt of the Secretary of State’s consent, the regulator will prepare an instrument of amalgamation (‘instrument’) and send it to the Financial Conduct Authority for registration in accordance with section 255(5) to (7) of the Act.
The amalgamation does not take effect until the instrument is registered by the Financial Conduct Authority. The regulator will notify NPRP3 of the registration of the instrument.
NPRP3 must be registered with the regulator and designated as non-profit. Pending registration, it shall be treated as registered and designated non-profit.
Appeal process
There is no statutory right of appeal or appeals’ process in accordance with the Regulator’s Appeals Scheme