Guidance Note 22: Information
This note applies from 1 April 2024
Applies to England
Guidance Note 22: Sections 107-108 of the Housing and Regeneration Act 2008 (as amended) (‘the Act’) - Information
| Target | Applicable |
|---|---|
| PRP (For Profit) | ✔ |
| PRP (Not For Profit) | ✔ |
| PRP (Registered Charity) | ✔ |
| Local Authority | ✔ |
Type of power: General power
Scope
1 - The regulator, or a person authorised by the regulator in writing, may for a purpose connected with the regulator’s functions require a person to provide document(s) or information which is believed to be in their possession, or an explanation of them.
2 - An offence will be committed where a person:
- fails to comply without reasonable excuse to the request for document(s), information or an explanation; or
- intentionally alters, suppresses or destroys documents or information; or
- knowingly or recklessly provides documents, information or an explanation which is false or misleading.
3 - The regulator may also apply to High Court to seek an order compelling the person to provide the documents, information or explanation sought, and may seek to recover its costs.
When the Regulator will use this power
4 - The use of this power is not limited to registered providers or their employees, officers, members and agents. It can be used against bodies who have applied to be registered with the regulator and third parties, including subsidiaries and associates (as defined in s.271 of the Act) of registered providers.
5 - The use of this power does not require a person to produce anything which they could refuse to disclose on the grounds of legal professional privilege in High Court proceedings. Neither does it require a banker to breach a duty of confidentiality owed to persons who are not:
- a registered provider;
- a subsidiary of a registered provider;
- an associate of a registered provider; or
- a person who is certified in writing by the regulator as being:
i) a person who has applied to be a registered provider of social housing; or
ii) a local authority which the regulator thinks may be, or may become, a registered provider of social housing.
6 - The regulator may use this power in a variety of circumstances including but not limited to where a registered provider:
- has failed to produce the information and documents requested on a voluntary basis;
- is either slow or unwilling to produce information and documents requested; or
- has failed to deal with previous regulatory interventions to the satisfaction of the regulator.
7 - The regulator only anticipates having to authorise others to use this power on its behalf in exceptional circumstances. For example, as part of an inquiry or where a survey is commissioned and if the registered provider has been unwilling or unable to provide documents or information.
8 - The above examples are not exhaustive and there may be other circumstances where the regulator concludes it is necessary to use this power including where it is an expedient mechanism to be used in the furtherance of the regulator’s objectives.
Process for using the power
9 - If the regulator is unable to obtain, in the context of regulatory engagement on a particular case, information or document(s) from the registered provider on a voluntary basis or considers it necessary to use this power for other reasons, the regulator will send a letter or notice to the registered provider which will specify:
- that the regulator is exercising this power;
- the information, document(s), or explanation of them required;
- the form and manner in which the information, document(s) or explanation should be provided, which may include a copy of information stored electronically; and
- when and where (or to whom) the information, document or explanation is to be provided.
10 - Should the regulator elect a person to exercise these powers on its behalf, the authorisation:
- will be in writing;
- specify the extent to which the person is authorised to exercise the powers; and
- may provide that the person is to be authorised for a particular period.
Appeal Process
11 - There is no statutory right of appeal or appeals’ process in accordance with the Regulator’s appeals scheme.