Housing Regulator Bill Published

The Government has published the much anticipated Bill to provide for a statutory regulator for ‘Approved Housing Bodies’ (“AHB’s”). AHB’s are also known as housing associations and are independent, not-for-profit organisations that have been given formal approval by the Department of Housing, Planning and Local Government.

The Government has published the much anticipated Bill to provide for a statutory regulator for ‘Approved Housing Bodies’ (“AHB’s”).  AHB’s are also known as housing associations and are independent, not-for-profit organisations that have been given formal approval by the Department of Housing, Planning and Local Government.  Once approved an AHB can receive assistance from Local Authorities for the provision of housing in accordance with the Housing Acts.  AHB’s can also access various sources of State funding for the development of housing.

Currently there are 548 AHB’s in Ireland managing about 30,000 units.  AHB’s are recognised in both the Social Housing Strategy 2020 and Rebuilding Ireland as key channels for the delivery of new social housing units.

Prior to this Bill, the Department had established a Voluntary Regulation Code, under the auspices of the Housing Agency, which AHB’s could sign up to.  As well as the Code, Standards in Performance, Governance and Finance were published.  AHB’s who did not sign up to these codes were not eligible for Government funding. The codes can be accessed here.

The Bill – Establishing a Mandatory Model of Regulation for AHBs

The Housing (Regulation of Approved Housing Bodies) Bill 2019 seeks to move the regulation of AHB’s from a voluntary to a mandatory basis.  The Bill establishes the Approved Housing Bodies Regulatory Authority and assigns it the following functions:

• the registration of AHBs;
• setting standards for AHBs, subject to the approval of the Minister;
• monitoring and assessing compliance by AHBs with the standards prepared by the Regulator;
• undertaking investigations into AHBs, where necessary;
• the cancellation of registration of AHBs, where appropriate; and
• the right to seek Court orders to protect the assets of AHBs in certain circumstances.

Registration of an AHB with the Regulator will be compulsory, as will compliance with the standards set by the Regulator.

Standards:

The Bill details the matters that can be the subject of standards being:

• Governance;
• Financial management and reporting;
• Property and asset management; and
• Tenancy management.

Standards may make different provisions for different categories of AHB’s taking into account the nature, scale and complexity of their activities. Draft standards must be published for public comment and will also require the approval of the Minister.

Once established AHB’s will be obliged to comply with these standards.  The Regulator will monitor compliance and is provided with extensive powers to do so.  These powers include undertaking ‘standards assessments’, appointment of inspectors, powers of entry onto premises, power to require information etc.  Should the Regulator conclude that an AHB is failing to comply with an approved standard, the Regulator can require an AHB to submit a ‘compliance plan’ setting out how the AHB proposes to rectify the failure concerned.  The Regulator may approve, amend or reject a compliance plan.  Once approved, details of the plan are entered into the Register in summary form.  Failure to comply with the approved compliance plan can lead to the Regulator issuing a ‘non-implementation notice’ and ultimately to removal of the AHB from the Register.

Powers to Intervene:

The Regulator is provided with substantial powers of intervention in respect of assets of an AHB which would allow the Regulator to require the AHB to transfer those assets to another AHB.  This power may be exercised where an AHB has not applied for registration or has been refused registration, or where the registration is in the process of being cancelled or has been cancelled.

The Regulator may also apply to the High Court for various orders where the Regulator suspects that:

• an AHB has committed an offence under the Bill;
• an AHB is failing to comply with provisions under the Bill;
• an AHB is misusing or mismanaging property in such a way that endangers the property;
• there has been misconduct or mismanagement by a director or employee of an AHB in relation to its affairs;
• there has been unlawful or improper use of funds;
• there is a serious risk to the financial viability of the body;
• it is necessary for the purpose of the protection of the tenants of dwellings provided or managed by an AHB; or
• there is information indicating any of the above.

The High Court may make a variety of orders when deciding on such an application.  These are:

• cancellation of the registration of the AHB;
• removal or suspension of any director or officer or employee of the body;
• appointment of other people to be a director or officer of the body;
• vesting of any or all of the property of the AHB with another AHB identified by the Regulator;
• prohibiting the removal or sale of the property without the Regulator’s consent;
• non-payment by a debtor to the body for a specified period; or
• the restriction or prohibition of an AHB to enter any agreements.

Cancellation of Registration:

The Regulator may cancel the registration of an AHB where the AHB:

• request it and provides sufficient details of how it will fulfil its existing obligations;
• has been convicted of an offence under the Bill or any other indictable offence;
• has failed or is failing to comply with any provisions under the Bill;
• no longer satisfies the eligibility criteria for registration as an AHB, or
• is deemed to be an AHB under the Bill and has been deregistered under the provisions of that section.

Appeals:

An independent appeal mechanism is provided in respect of decisions of the Regulator relating to:

• Refusing to Register an AHB,
• Issuing a notice of non-compliance following a refusal to approve a compliance plan with or without modifications,
• The rejection of a further compliance plan submitted after receipt of a notice of non-compliance,
• The issuing of a notice of non-implementation of an approved compliance plan,
• Refusal to grant a request by an AHB to cancel its registration, and
• A decision to cancel the registration of an AHB.

Independence:

The Regulator will be independent in the performance of its functions subject to two important restrictions.

1. In performing its functions the Regulator shall have regard to the policies and objectives of the Government.
2. The consent of the Minister is required before any Standards may be adopted by the Regulator.

Conclusion:

The Bill provides an extensive regulatory framework for AHB’s.  It largely builds on the voluntary framework that has been in place for several years. What is new in the Bill is the extensive powers and mechanisms available to the Regulator to ensure compliance with approved standards up to removal of an AHB from the Register and the High Court vesting the property of an AHB in another AHB.

The Bill can be accessed here.