The Social Housing (Regulation) Act 2023: The Regulator of Social Housing’s new powers

Posted: 08/02/2024

This series of ‘back to the future’ articles looks at the Social Housing (Regulation) Act 2023, the changes made, and what social housing providers should be aware of, as well as examining whether it is entirely new law, or a re-invention of something previously seen within the social housing sector.

This is the fifth article in the series, which looks at the Regulator of Social Housing’s (RSH) new powers given to it by the act.

The regulator has been given a direction by the secretary of state to set a new regulatory standard (which it can then monitor and enforce), that requires registered providers to give accessible information to their tenants about their rights, how they can make complaints, the regulatory requirements that apply to their homes, facilities, and the services their landlord provides. 

Rather like Awaab’s Law (which was covered in the previous article) this amplifies existing obligations on registered providers rather than introducing new ones. It was brought in because of the perceived difficulties in getting registered providers to give their tenants adequate information about the housing service they offer. Whether or not it will succeed in doing so remains to be seen.

The act also expands the RSH’s powers by widening the application of a range of provisions in the Housing and Regeneration Act 2008 to cover ‘for-profit’ registered providers (currently, they only apply to ‘not-for-profit’ ones). These include arrangements and reconstructions, conversions from company to registered society corporate status, restructures, dissolutions, and constitutional changes.

Similarly, the act has removed a restriction on registered providers that are also registered charities. It was the case that unless they had received public assistance (eg grants), the regulator could not take any action against them. Not any more. Now they are subject to certain powers of the regulator, such as the power to order inquiries and suspending, removing or replacing officers. 

The regulator’s powers have also been widened so that failure to comply with the regulatory standards enables it to take regulatory action. These powers include:

• setting criteria in relation to meeting regulatory standards on registration as a new provider;
• deregistering a registered provider that has failed to comply with the regulatory standards;
• entering premises, giving at least 48 hours’ notice (rather than 28 days as previously provided), to carry out a survey of the condition of the premises – some commentators have likened this to the Ofsted-style inspections;
• once a survey has been carried out, entering premises to undertake emergency remedial action where there is imminent risk of serious harm to the health or safety of tenants;
• requiring a registered provider to implement a performance improvement plan;
• setting competency and conduct standards for staff working for registered providers;
• issuing unlimited fines to registered providers (there was previously a cap of £5,000); and
• appointing a manager which is no longer restricted to an individual, so a corporate body can therefore be appointed.

It makes sense to link the regulator’s powers to breaches of the regulatory provisions, and one wonders why this wasn’t done when the Housing and Regeneration Act 2008 was drafted. However, the real issue is the regulator’s reluctance to use them. Despite having wide-ranging and extensive powers to take action against registered providers that are not complying with the regulatory standards, the RSH has been rather reticent when it comes to taking action. In fact its reluctance, even in the face of major breaches, was commented on by the House of Commons Levelling Up, Housing and Communities Committee in its first report of the 2022-23 session, with calls for the regulator to be ‘more muscular’ in its enforcement of the regulations.

The regulator had cited various reasons for its caution before using its powers, including a concern that an increase in the use of these could trigger a reclassification of housing associations as public bodies, its statutory obligation to minimise interference with registered providers, and its need to act proportionately. 

It seems therefore, that if the problem is the way the regulator has been established, its framework of operation may be the real issue; in which case there is little point in extending its intervention powers if it feels unable to use them. 

Our next ‘back to the future’ article will look at the new consumer standards. 

Return to news headlines