Housing (Regulation of Approved Housing Bodies) Bill 2015
Head 1:
Short Title and Commencement
Head 2:
Interpretation
Head 3:
Expenses
Head 4:
Minister’s powers to prescribe regulations
Head 5:
Establishment of an Approved Housing Body Regulator
Head 6:
Management of AHB Regulatory Board
Head 7:
Staff
Head 8:
Superannuation
Head 9:
Object of the AHB Regulator
Head 10:
Functions of the AHB Regulator
Head 11:
Obligations of Approved Housing Bodies
Head 12:
Powers of the AHB Regulator
Head 13:
Power to determine and set regulatory standards
Head 14:
Power to seek external advice and reports
Head 15:
Inquiry Powers
Head 16:
Investigative Powers
Head 17:
Guidance Powers
Head 18:
Assessment Powers
Head 19:
Publishing Powers
Head 20:
AHB Annual Returns
Head 21:
Intervention Power – Engagement Plans
Head 22:
Enforcement
Head 23:
Power to remove, suspend or appoint AHB officers or employees
Head 24:
Appointment of manager for financial and other affairs
Head 25:
Asset protection – restrictions on dealings during or following inquiries
Head 26:
Asset Protection – Power to give, or refuse to give consent, to disposal of assets
Head 27:
Asset protection - transfer of assets following inquiries
Head 28:
Financial Assistance in the event of transfer of assets
Head 29:
Moratorium in the event of Insolvency
Head 30:
Register of Approved Housing Bodies
Head 31:
Function of the Approved Housing Body
Head 32:
AHBs deemed to be Registered
Head 33:
Provision to make an appeal against a decision of the AHB Regulator
Head 34:
Information on Offences
Head 35:
Financial provisions for the AHB Regulator
Head 36:
Statement of Strategy
Head 37:
Annual Report and Accounts
Head 38:
Accountability to PAC
Head 39:
Accountability to other Oireachtas Committees
Head 40:
Administrative Cooperation on Regulatory Matters
Head 41:
Offences
Head 42:
Review
Head 43:
Repeals
Head 44:
Amendment of the Residential Tenancies Act 2004
Head 45:
Amendment of the Housing (Miscellaneous Provisions) Act, 2009
Schedule 1:
AHB Regulatory Board
Head 1: Short Title and Commencement
Contents
To provide that:
(1)
The Bill be cited as the Housing (Regulation of Approved Housing Bodies) Bill 2015.
(2)
The Bill when enacted comes into operation on such day or days as the Minister may
appoint by order or orders generally or with reference to any particular purpose or
provision and different days may be so appointed for different purposes or different
provisions.
Head 1 Note:
Standard provision
Head 2: Interpretation
Contents
To provide that:
“Act of 1992” means the Housing (Miscellaneous Provisions) Act 1992;
“approved body” means an approved housing body standing approved for the purposes of
section 6 of the Housing (Miscellaneous Provisions) Act 1992;
“Minister” means the Minister for the Environment, Community and Local Government;
“AHB Regulator” means the AHB Regulatory Board established under Head 5 of this Bill;
“prescribe” means by regulations made by the Minister;
“company” means limited company formed by guarantee of their members and not having a
shareholding, registered under the Companies Act 2014;
“officer” means a person who holds an office of authority, command or trust and includes a
director or secretary to the approved body;
“registrar of companies” means registrar as defined by the Companies Act 2014;
“charity” means a “charitable organisation” as defined by the Charities Act 2009;
“charities regulator” means the Charities Regulatory Authority as defined by Section 13(2) of
the Charities Act 2009;
“registrar of friendly societies” means societies registered under the Industrial and Provident
Societies Acts 1893 to 2014;
“constitution” means the constitution of the organisation outlined in the Articles and
Memorandum of Association.
“social housing support” shall be read in accordance with Section 19 of the Housing
(Miscellaneous Provisions) Act 2009.
Head 2 Notes:
Standard provision.
Head 3: Expenses
Contents
To provide that (1) The expenses incurred by the Minister in the administration of this Act shall, to such
extent as may be sanctioned by the Minister for Public Expenditure and Reform, be
paid out of moneys provided by the Oireachtas.
Head 3 Notes:
The wording in Head 3 relates solely to the administration surrounding the enactment of this
legislation and is a standard provision.
Head 4: Minister's powers to prescribe regulations
Contents
To provide that –
(1) The Minister may make regulations prescribing matters relating to -
(a) the terms and conditions of state funding and/or state assets provided to AHBs and
shall include a provision for consent to disposal of such assets subject to such
conditions as specified by the AHB Regulator,
and
(b) the setting of fees to be paid to the AHB Regulator by AHBs for the purpose of the
functions of the AHB Regulator
(2) Regulations made under this Act may (a) contain such incidental, supplementary, consequential or transitional provisions as
appear to the Minister to be necessary for the purposes of the regulations, and
(b) be expressed to apply generally or to specified classes of Approved Housing Bodies.
(3) Regulations prescribed under this Act shall be laid before each House of the
Oireachtas as soon as may be after it has been made and, if a resolution annulling the
regulation is passes by either such House within the next 21 days on which that House
has sat after the regulation is laid before it, the regulation shall be annulled
accordingly, but without prejudice to the validity of anything previously done
thereunder.
Head 4 Notes:
The purpose of Head 4 is to set out the regulatory functions of the Minister. The intention is that the
Minister’s regulatory functions will be confined solely to the terms and conditions pertaining to state
funding schemes for AHBs in the delivery of housing.
Subhead 4(1)(a)
The terms and conditions of state funded capital projects with AHBs are in the main covered under an
agreed Memorandum prepared in consultation with the AHB Sector and with Local Authorities,
which dates back to 2002. Section 6 of the Housing (Miscellaneous Provisions) Act 1992 along with
Section 15 of the Housing Act 1988 is the statutory basis for the Capital Assistance Scheme contained
as set out in this Memorandum.
The Capital Assistance Scheme (CAS) provides primarily for the payment of a grant in respect of
each sanctioned rental housing project by the Department to a housing authority following its
approval of a housing project under the Scheme. The housing authority then lends this money in the
form of a 30 year annuity mortgage loan to the AHB towards the approved costs it incurs in providing
the dwellings. The terms of the CAS provide that repayments and interest charges due from the AHB
may be fully waived, provided the AHB continues to comply with the terms and conditions of the
scheme and the mortgage deed contract signed with the local authority.
A similar type scheme was introduced in 1991 to assist approved housing bodies AHBs in the
provision of accommodation for low income families. That scheme was known as the Capital Loan
Subsidy Scheme (CLSS). More recently in 2011 the Government replaced this scheme with the
Capital Advanced Leasing Facility (CALF) which allows for a tri-partite structure of fund raising by
AHBs. The terms and conditions of CALF projects are contained in Payment and Availability
Agreements with Local Authorities rather than a mortgage structure.
As with all legal mortgage facilities AHBs are de-facto owners of the property and once the mortgage
expires the AHB has full entitlement to dispose of that property. This has led to concerns about
security of tenure of sitting tenants.
The provisions of subhead 4(1)(a) will allow the Minister to prescribe the terms and conditions of
such funding projects and link such terms and conditions to consent for disposal. This is intended to
provide increased security of assets as any changes to the asset liability will need to be approved by
the AHB Regulator under regulation.
Subhead 4(1)(b) confers regulatory powers to the Minister to set fees for regulation. Given that the
AHB sector will be required to pay fees for registration with the PRTB it is not intended to introduce
a fee structure for the purpose of regulatory oversight by the AHB Regulator in the foreseeable future.
The Bill proposes that the cost of regulation will be covered by the Exchequer. Provision is made
under Head 7 for the cost of staffing to be provided for by the Exchequer with the consent of the
Minister for Public Expenditure and Reform.
The provision of subhead 4(1)(b) is simply included for future proofing and its purpose is to ensure
that any decision for the setting of fees would rest with the Minister.
Subhead 4(2) is intended to enable the Minister to introduce regulations to cover any possible
incidental, supplementary, consequential or transitional provisions that have not been foreseen in the
Act but that are necessary to enable its provisions to have full effect for example, ensuring
engagement with the Regulation Office pending formal establishment of the AHB Regulator.
Subhead 4(3) is a standard provision relating to the laying of prescribed regulations before the
Houses of the Oireachtas.
Head 5: Establishment of an AHB Regulatory Board
Contents
To provide that –
(1) The Minister shall by order, appoint a day to be the establishment day for the
purpose of this Act.
(2) There shall stand established on the establishment day, a body which shall be known
as the AHB Regulatory Board (in this Act referred to as the “AHB Regulator”), to
perform the functions conferred on it by this Act.
(3) The provisions of Schedule 1 shall have effect in relation to the AHB Regulator.
Head 5: Notes:
The Government has committed to bringing greater transparency and better governance to the AHB
sector. To this end in July 2013, the Minister introduced a system of voluntary regulation for the
sector pending enactment of this Bill. The system of voluntary regulation is based on a published
code of practice for the governance of AHBs entitled Building for the Future, A Voluntary Code for
Approved Housing Bodies in Ireland.
Interim Regulation
While the Department’s involvement with AHBs relates primarily to the provision of funding under
specific schemes, in February 2014 the Minister established an interim Regulation Committee under
the auspices of the Housing and Sustainable Communities Agency (Housing Agency) and supported
by a Regulation Office within that agency. The interim regulation committee was set up to oversee
implementation of the code and to advise on statutory regulation. This acknowledges the importance
of independent regulation in the interim period of the Voluntary Regulation Code. The interim
Regulatory Committee was established with an independent Chairperson and includes representatives
from the AHB sector, an external Regulator, experts in housing policy and finance and a tenant
representative.
It is a recommendation of the interim Regulation Committee that regulation should be independent of
Government.
The current draft of Head 5 is based on developing a new legal entity reporting to an independent
Board. Head 5 therefore provides for the establishment of an AHB Regulatory Board. The structure
of this Board will be deemed as independent in its decisions as outlined in Schedule 1 of the Bill.
Head 6: Management of AHB Regulatory Board
Contents
Provides that (1) There shall be a chief officer of the Board who shall be known and is referred to in this
Act as the “Chief Executive”.
(2) The Chief Executive shall be appointed by the Board in accordance with procedures that
have been determined by the Board with the consent of the Minister.
(3) The first appointment by the Board of a person to be the Chief Executive shall be made
within 12 months from the establishment day.
(4) The Chief Executive may, at any time, for stated reasons be removed from office by the
Board with the consent of the Minister.
(5) The Chief Executive shall carry on, manage and control generally the administration and
business of the Board and perform such other functions as may be determined by the
Board.
(6) The Chief Executive shall hold office for such period and subject to such terms and
conditions (including terms and conditions relating to remuneration) as may be
determined from time to time by the Minister, after consultation with the Board and with
the consent of the Minister for Public Expenditure and Reform.
(7) The Chief Executive shall perform his or her functions subject to such policies as may be
determined from time to time by the Board and shall be answerable to the Board for the
efficient and effective management of the Board and for the due performance of his or
her functions.
(8) The Chief Executive may delegate any of his or her functions to a member of staff of the
Board (other than functions that have been delegated to the Chief Executive subject to a
condition that they are not to be sub-delegated), and the member of staff shall be
accountable to the Chief Executive for the performance of the functions so delegated.
(9) Notwithstanding subhead (8), the Chief Executive shall at all times remain accountable to
the Board for the performance of functions delegated by him or her.
(10) The Chief Executive may make proposals to the Board on any matter relating to the
activities of the Board.
(11) The Chief Executive shall not be a member of the Board or of any committee of the
Board, but he or she may, in accordance with procedures established by the Board or a
committee, as the case may be, attend meetings of the Board or the committee or both
and shall be entitled to speak at and advise such meetings.
Head 6 Notes:
Head 6 provides for the appointment of a Chief Executive to the AHB Regulatory Board and sets out
the parameters for appointment, remuneration and conditions of employment.
Head 7: Staff
Contents
To provide that –
(1) The AHB Regulator shall appoint, with the consent of the Minister given with the
consent of the Minister for Public Expenditure and Reform, such and so many persons
to be members of the staff of the AHB Regulator as it may from time to time determine.
(2) The terms and conditions of service of a member of the staff of the AHB Regulator, with
the consent of the Minister given with the consent of the Minister for Public Expenditure
and Reform, be such as may be determined from time to time by the AHB Regulator.
(3) There shall be paid by the AHB Regulator to the members of its staff such remuneration
and allowances as, from time to time, the AHB Regulator, with the consent of the
Minister given with the consent of the Minister for Public Expenditure and Reform ,
determines.
Head 7 Notes:
The purpose of this Head is to make adequate provision for administrative support to be put in place
for the AHB Regulator to provide the regulatory services needed to implement a statutory regulatory
framework and to provide for associated staffing expenses subject to the consent of the Minister for
Public Expenditure and Reform.
Head 8: Superannuation
Contents
Provides that –
(1) Without prejudice to the generality of Head 4, The Minister may, with the consent
of the Minister for Public Expenditure and Reform, make regulations to provide
for a scheme or schemes for the granting of superannuation benefits to or in respect
of such of its staff (including the chief executive) as the AHB Regulator shall think
fit.
(2) Such Regulations, if the Minister thinks fit, may include provisions for the inclusion
of staff of the AHB Regulator in a scheme or schemes for the granting of
superannuation benefits operated by a designated body.
(3) In this section “superannuation benefit” means a pension, gratuity or other
allowance payable on resignation, retirement or death.
(4) In this section “designated body” means a body designated by the Minster to
operate a scheme for the granting of superannuation benefits on behalf of the AHB
Regulator.
Head 8 Notes:
Head 8 contains standard provisions so that the Minister may provide for a pension scheme for staff
of the AHB Regulator.
Subhead 8(2) provides that the Minister may, for the purposes of superannuation, deem the staff of
the AHB Regulator to be members of another body. The purpose of this would be to allow for the
sharing of services and avoid duplication.
Head 9: Object of the AHB Regulator
Contents
To provide that:
(1) The object of the AHB Regulator is (a) to safeguard public and private investment in AHBs and the assets developed
through that investment, and
(b) to protect tenant’s interests through the regulation of AHBs in their provision of
appropriate housing and related services.
Head 9: Notes:
Although governed by a number of existing legal requirements and contractual relationships, AHBs
have not previously been subject to formal regulation. The link between regulation and investment is
a significant factor in the timing of the introduction of regulation for AHBs, but the case for
regulation goes beyond this financial imperative. In this context it is important to ground the rationale
for regulation and the role of the AHB Regulator in the Bill.
The purpose of this Head is to include a clear statement of purpose and objectives of the AHB
Regulator.
Essentially, the AHB Regulators object will be to provide a safeguard for public and private
investment in AHBs and the assets developed through that investment - subhead 9(1)(a).
In addition, the AHB Regulator may be required to achieve a number of additional outcomes relating
to the provision of appropriate housing and services - subhead 9(1)(b). Such outcomes would
include;
 Raising awareness of regulatory principles, support the establishment of good practice and
advise AHBs on regulation;
 Dealing with any legacy issues arising from the absence of prior formal regulation of AHBs;
and
 Supporting general principles and policy objectives in relation to social housing.
Head 10: Functions of the AHB Regulator
Contents
To provide that (1) The general functions of the AHB Regulator shall be (a) To further the AHB Regulator’s object under Head 9,
(b) To establish and maintain a Register of Approved Housing Bodies,
(c) To grant or refuse approval for approved housing status subject to the
provisions of Head 29,
(d) To monitor, assess, intervene and report where appropriate on standards in
relation to governance, financial management and performance of AHBs,
(e) To seek information from AHBs,
(f) To encourage and facilitate the better administration and management of
approved housing bodies by the provision of information and advice, including
in particular by way of issuing (or, as it considers appropriate, approving)
guidelines or codes of conduct,
(g) To carry out such activities or publish such information (including statistical
information) concerning approved housing bodies as it considers appropriate,
(h) At the request or with the approval of the Minister, to review and make
recommendations to the Minister, as the AHB Regulator thinks fit, in respect
of the provision of housing services by AHBs.
(2) The AHB Regulator shall have all such powers as are necessary or expedient for
the performance of its functions.
(3) Subject to this Act, the AHB Regulator shall be independent in the performance of
its functions.
(4) The AHB Regulator may perform any of its functions through or by any member
of the staff of the AHB Regulator duly authorised in that behalf by the AHB
Regulator.
Head 10: Notes:
The purpose of this Head is to specify in detail the functions of the AHB Regulator. Primarily the
functions of the AHB Regulator will be to establish and maintain a register of AHBs and to monitor,
assess, intervene and report where appropriate on governance, financial management and performance
matters.
In essence assigning these functions to the AHB Regulator will enable detailed regulation of the AHB
sector which heretofore has been largely governed by a fragmented set of existing legal requirements
and contractual relationships with no formal housing-specific regulatory oversight.
Subhead 10 (1) lists the functions of the regulator which include:
 establishing a register of Approved Housing Bodies
 stewardship and enforcement functions - subhead 10(1)(d)
 seeking of information
 issuing of guidelines or codes of conduct
 information gathering and publishing functions
 making recommendations to the Minister in respect of the provision of housing services by
AHBs.
Subhead 10(2) is a standard head to allow the AHB Regulator to perform its functions within the
parameters of the functions provided for by this Head.
Subhead 10(3) and (4) assert the independence of the AHB Regulator and permit the performance of
the Regulators functions by a member of its staff to be recognised.
Head 11: Obligations of Approved Housing Bodies
Contents
To provide that (1) Bodies operating in the provision of social housing supports shall be obliged to
register with the AHB register in accordance with criteria for registration as set out
by the AHB Regulator under Head 30(2) and shall be known as approved housing
bodies.
(2) Notwithstanding the provisions of Head 30, Approved Housing Bodies must(a) establish a Board of Management,
(b) comply with governance and financial standards set by the AHB Regulator in
accordance with Head 13,
(c) submit information to the AHB Regulator on such matters as may be
determined by the AHB Regulator including (i)
roles and responsibilities of the Board,
(ii)
membership of the Board,
(iii)
frequency of Board meetings,
(iv)
financial information,
(v)
information on performance management,
(vi)
information on strategic and financial planning,
(vii)
information regarding Finance or Audit Committees where established
(viii) auditing requirements, and
(ix)
any other matter deemed significant by the AHB Regulator for the
purpose of their regulatory functions set out under Head 10.
(3) AHBs shall notify the AHB Regulator of (a) any change to Constitution / Articles of Association; planned acquisitions and
mergers,
(b) the commencement of any procedures under statute towards insolvency
including any cancellation of legal registration status under their Constitution,
(c) any event which may be seen as bringing the AHB into disrepute or threatening
the organisations stability, efficiency, operations and general viability.
(4) AHBs shall not dispose of any AHB assets [valued in excess of €10,000] without the
consent of the AHB Regulator.
(5) Failure to comply with provisions under this Head may be considered an offence.
Head 11: Notes:
The purpose of Head 11 is to provide that bodies operating as AHBs must register with the AHB
Regulator and are obliged to inform and notify the AHB Regulator of particular matters relating to
their conduct of business, board of management, changes to Articles of Association or significant
events. The purpose of these obligations is to ensure that the Regulator is kept up to date and has the
necessary information to facilitate regulation or to begin intervention where necessary.
Subhead 11(1) is intended to oblige housing bodies to register with the AHB Regulator. It is
intended that only those bodies that satisfy the criteria as set out by the AHB Regulator under Head
29(2) will be eligible to be registered and they will be called Approved Housing Bodies.
Subhead 11(2) sets out certain “must do ” criteria for AHBs such as registering with the AHB
Regulator, complying with standards as set by the Regulator and supplying information to the
Regulator as deemed necessary by the Regulator.
Subhead 11(3)(a) and (b) will oblige AHBs to notify the AHB Regulator of any change to
Constitution / Articles of Association; planned acquisitions and mergers, and commencement of any
procedures towards insolvency including any cancellation of legal registration status under their
Constitution. This will enable the regulator to act as it sees fit and within the provisions of this Act.
Subhead 11 (3)(c) sets out a general definition of a notifiable event. At this stage the Department is
reluctant to prescribe notifiable events as these types of events can be influenced by the financial
environment at a particular time. However it is likely that such events will include but should not be
confined to, the resignation of a chairperson, an event of serious fraud, a Health and Safety event and
liquidity issues.
Subhead 11(4) obliges AHBs to apply to the AHB Regulator for consent before disposing of any of
its assets. An important power of the AHB Regulator will be the protection of assets (thereby
protecting continued tenant occupation). The intention here is that the regulator will be notified and
will be enabled to give or refuse to give consent to any disposal of assets. (Reference Head 25 Asset
Protection – Power to give, or refuse to give consent to disposal of assets)
Subhead 11(5) makes it an offence for an AHB not to comply with its obligations under this Act.
Head 12: Powers of the AHB Regulator
Contents
Provide that the AHB Regulator may (1) Register or de-register a body.
(2) Determine and set regulatory standards regarding the governance, financial
management and performance of AHBs.
(3) Make an accounting determination.
(4) Obtain information and carry out inquiries (Inquiry Powers).
(5) Carry out regulatory assessments (Assessment Powers).
(6) Investigate one or more AHBs performance (Investigative Powers).
(7) Issue guidelines on the performance and housing activities of AHBs (Guidance
Powers).
(8) Engage such consultants, advisers or agents as may be considered necessary for
the performance of its functions.(Power to seek external advice and reports)
(9) Publish reports (Publishing Power).
(10)Intervene using any combination of the following intervention powers (a) Requiring the submission of an engagement plan,
(b) Appointing an interim manager to an AHB for financial or other affairs in
order to ensure that the AHB manages its financial or other affairs to an
appropriate standard,
(c) Removing or suspending a member of a Board,
(d) Appointing a member to a Board,
(e) Give direction to an AHB to transfer some or all of its assets to another AHB,
if following an inquiry into its affairs there is a risk that the AHB’s viability is
in jeopardy,
(f) Making of certain recommendations to the Minister, or
(g) Give, or refuse to give, consent to dispose of assets.
Head 12 Notes:
The purpose of Head 12 is to set out the powers conferred to the AHB Regulator under the Bill. It is
intended that as much autonomy as possible is given to the AHB Regulator to execute its regulatory
functions.
Subhead 12(1) gives power to the AHB Regulator to grant approved status to housing associations.
Head 29 deals with the criteria for granting of approved housing body status and the setting up of a
register of AHBs and Head 42 repeals Section 6 of the Housing (Miscellaneous Provisions) Act 1992
which gave power of approval to the Minister.
Subhead 12(2) provides that the regulator may determine and set standards regarding the governance,
financial and performance management of AHBs.
Subhead 12(3) is intended simply to provide for consistency of accounting practice within the AHB
sector to a particular standard.
Subhead 12(4) allows the AHB Regulator to obtain information and carry out enquiries in relation to
financial matters pertaining to individual AHBs. Under the interim regulatory structures which were
set up within the Housing Agency this function is currently being piloted by the newly formed interim
Regulation Office. Head 15 gives further detail on enquiry powers of the AHB Regulator under this
Bill. It is likely that this will include requests for information on various governance aspects such as:
annual returns to the AHB Regulator; annual accounts; financial forecasts; loan port-folio
information.
Subhead 12(5) enables the AHB regulator to carry out regulatory assessments. The purpose of these
assessments is to gauge the level of risk that may be associated with the AHB. Regulatory
assessments will be made by reference to the standards established under subhead (2) and will be
based on the information acquired by the AHB Regulator and on information submitted by the AHB.
The key risks that will be assessed are likely to be as follows:









Cash from operations
Liquidity
Gearing
Sinking fund provision
use of overdraft
debt
governance
board structure and operations
separation of powers
Subhead 12(6) enables the AHB Regulator to carry out further investigative assessments. This may
involve the right of access at all reasonable times to:
(a) any premises of the AHB, and
(b) any documentation or other information relating to the AHB which the AHB Regulator
believes to be relevant to the inquiries.
Subhead 12(7) enables the AHB Regulator to issue guidelines. It is intended that such guidelines
may relate to matters concerning housing services provided by AHBs, the criteria for registering a
body as an AHB and matters relating standards of governance and financial management of AHBs.
Subhead 12(8) enables the AHB Regulator to engage such expertise as may be required to assist in its
functions for example, a qualified auditor to audit the AHBs accounts and balance sheet and to report
to the regulator.
Subhead 12(9) enables the AHB Regulator to publish its reports.
Subhead 12(10) lists the various intervention or “step-in” powers which are conferred on to the AHB
Regulator in this Bill. These include:







Requiring the submission of an engagement plan
Appointing an interim manager to an AHB for financial or other affairs in order to ensure
that the AHB manages its financial or other affairs to an appropriate standard
Removing or suspending a member of a Board
Appointing a member to a Board
Give direction to an AHB to transfer some or all of its assets to another AHB, if following
an inquiry into its affairs there is a risk to the financial viability of the AHB
Making of certain recommendations to the Minister
Give, or refuse to give, consent to dispose of assets
Each of these powers is further developed in the Bill under separate Heads.
Head 13: Power to determine and set regulatory standards
Contents:
To provide that –
(1) The AHB Regulator shall (a) produce within 6 months of enactment of this Bill, a set of standards that will (i) encompass governance, financial management and performance of
AHBs,
(ii) be proportional with regard to the size and scale of housing support
services provided by AHBs, and
(iii) be risk-focused.
(b) revise these standards from time to time as the AHB Regulator sees fit.
(2) The AHB Regulator may exempt an AHB from such of the standards under subsection (1) as it considers appropriate where it is of the opinion that compliance by
the AHB with those requirements would be unduly onerous having regard to their
circumstances.
(3) Before issuing or revising the set of standards under subhead 13(1) the AHB
Regulator must consult with (a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
The Minister,
Tenants or their representatives,
AHBs or their representatives,
Local Authorities or their representatives,
The HFA and other financial providers,
The HSE,
The PRTB,
The Charities Regulator, and
Other relevant Regulatory Bodies.
Head 13 Notes:
One of the main recommendations of the interim Regulation Committee which was established in
2014 to oversee implementation of voluntary regulation for the AHB Sector was that a crucial element
to regulating is that regulation should be based on the risk exposure and the diversity of the
organisation. Therefore, this Bill proposes certain flexibility in the regulators approach to setting
standards taking into account the regulators need to respond to the external environment and risks
identified.
Subhead 13(1) gives power to the regulator to produce a set of standards relating to the governance,
financial management and performance of AHBs and that these standards will be risk focussed and
will have regard to the proportionality of size of the AHB sector.
Subhead 13(2) gives the Regulator the power to exempt AHBs from compliance with aspects of the
standards, where to do so would be disproportionate to the size and scale of its operations.
A “one-size-fits all” approach to regulation is not suitable for the AHB sector as there is a wide
diversity of organisations in terms of aims, activities, ambitions, housing units, staffing and resources.
It is proposed that more or less regulation will apply depending on the size, scale and level of
financial risk associated with development plans of the individual AHB.
The Voluntary Regulation Code “Building for the Future” which is currently being rolled out to
AHBs and monitored under an interim regulatory structure through the interim Regulation Committee
endorses this approach by structuring the sector into Tiers with specific commitments applicable to
each Tier.
Similar type provision under Section 36(6) Charities Act 2009
Subhead 13(3) provides that before issuing or revising the set of standards under subhead (1) the
AHB Regulator must consult with:
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The Minister
Tenants or their representatives
AHBs or their representatives
Local Authorities or their representatives
The HFA and other financial providers
The HSE
The PRTB
The Charities Regulator, and
other relevant Regulatory Bodies
Head 14: Power to seek external advice and reports
Contents
To provide that –
(1) The AHB regulator may at any time seek advice externally for the performance of the
AHB Regulator’s functions under Head 10.
(2) Notwithstanding the generality of subhead (1) and where, in the opinion of the AHB
Regulator, a risk has been identified to the financial viability of an AHB, the AHB
Regulator may appoint an external person, or agent as it may consider necessary to
report on the governance and/or financial structures of a particular AHB.
(3) Any fees due to such external person or agent engaged pursuant to this section shall be
paid by the AHB Regulator out of moneys at its disposal.
(4) A person to whom this section applies must disclose information to the AHB Regulator
(and may express an opinion on it) where the person has reasonable cause to believe
that the information is likely to be of material significance in relation to the
performance of the AHB Regulator’s general functions under Head 10.
(5) A person to whom this section applies may disclose information to the AHB Regulator
(and express an opinion on it) where the person has reasonable cause to believe that –
(a) there is no requirement to report the information under subhead (4), but
(b) the information is likely to be relevant to the performance of any of the AHB
Regulator’s functions.
(6) A duty or power which arises under subhead (4) or (5) is not affected if the person in
relation to whom it arises subsequently stops acting in the capacity mentioned in
subhead (2).
(7) No duty of confidentiality or other restriction on disclosure howsoever imposed
prevents a person from disclosing information to the AHB Regulator under this
section.
Head 14 Notes:
The purpose of this Head is to include a provision in the Bill that will allow the regulator to seek
external advice and reports on specific aspects of an AHBs performance where a risk has been
perceived to the financial viability of a particular AHB.
Subhead 14(1) is intended to provide the statutory basis for the regulator to seek external advice.
Subhead 14(2) is intended to provide statutory basis for the Regulator to appoint an external person,
or agent as it may consider necessary to report on the governance and/or financial structures of a
particular AHB.
Subhead 14(3) provides that any fees due to such external person or agent engaged will be paid by
the AHB Regulator out of moneys at its disposal.
Subhead 14(4) is intended to provide that any external persons or agents must disclose information to
the Regulator (and may express an opinion on it) where the person has reasonable cause to believe
that the information is likely to be of material significance in relation to the performance of the AHB
Regulator’s general functions under Head 10.
Subhead 14(5) is intended to cover the disclosure of information where there is no express
requirement to report the information but the information is likely to be relevant to the performance of
any of the AHB Regulator’s functions.
Subheads 14(6) this subhead is intended to absolve the duty to disclose information once the
contracted person’s contract is finished.
Subhead 14(7) ensures that information can be provided to the AHB Regulator even when
confidentiality restrictions have been put in place.
Head 15: Inquiry Powers
Contents:
To provide that –
(1) The AHB Regulator may make inquiries about—
(a) an Approved Housing Body, or
(b) a body which at the material time is or was connected to a registered AHB.
(2) Inquiries may be made—
(a) at any time, and
(b) generally or for particular purposes.
(3) Inquiries may relate to the AHBs governance structures, financial procedures,
financial dealings and to its performance in the provision of social housing
supports.
(4) Inquiries may be carried out –
(a) by the AHB Regulator, or
(b) by another person appointed by the Regulator.
(5) The AHB Regulator may require the AHB to attend a face to face meeting
where the AHB Regulator, having made inquiries or otherwise, considers that
–
(a) an AHB is, or is at risk of, failing to achieve a standard set out by the
Regulator,
(b) there has been misconduct or mismanagement in a AHBs financial or other
affairs, or
(c) that any other conduct by an AHB justifies requiring it to submit and
implement an engagement plan.
(6) AHBs shall have a duty to disclose information which may be required under
this Head by the AHB Regulator or a person or agent under Head 14 and
failure to do so shall be considered an offence.
Head 15: Notes:
The purpose of this Head is to set out in detail the inquiry powers of the Regulator.
Subhead 15(1) is intended to give powers of inquiry to the AHB Regulator into the operations of
AHBs and includes a reference to any body/entity connected to the AHB.
Subhead 15(2) gives scope to the AHB Regulator to make general or particular inquiries at any time.
Subhead 15(3) is intended to provide that those inquiries may relate to the AHBs governance
structures, financial procedures, financial dealings and to its performance in the provision of social
housing supports.
Subhead 15(4) clarifies who can make inquiries.
Subhead 15(5) provides that the AHB Regulator may require the AHB to attend a face to face
meeting where the AHB Regulator considers that an AHB is, or is at risk of, failing to achieve a
standard set, where there has been misconduct or mismanagement in a AHBs financial or other
affairs, or any other conduct by an AHB that justifies the regulator requiring it to submit and
implement an engagement plan.
Subhead 15(6) is intended to oblige AHBs to disclose information which may be required under this
Head by the AHB Regulator or any person or agent under Head 14, and failure to do so will be
considered an offence.
Head 16– Investigative Powers
Contents:
To provide that –
(1) The AHB Regulator, when making inquiries, has the following investigative powers (a) The AHB Regulator, or any person contracted by the AHB Regulator under Head
15(4)(b), has a right of access at all reasonable times to –
(i) any premises occupied by the AHB concerned, and
(ii) any document or other information relating to the AHB concerned which the
AHB Regulator believes to be relevant to the inquiries.
(b) The AHB Regulator, or any person contracted by the AHB Regulator under Head
15(4)(b), may inspect, copy, make extracts from or take away any document or
other information found on the premises accessed under subhead 1(a) (including
any information accessible by computers on the premises but stored elsewhere).
(2) The AHB concerned and any person in the premises accessed under subhead (1)(a)
must provide such facilities and assistance as the AHB Regulator may reasonably
request in connection with the inquiries.
(3) A person holding or accountable for any document or other information of a kind
described in subhead 16(1)(b) must, if so required, attend before the AHB Regulator or
its agent, in person to produce the document or, as the case may be, give the
information.
(4) It is an offence for a person, without reasonable excuse, to obstruct a person from
carrying out enquiries under this section.
Head 16 Note:
The purpose of this Head is to enable the AHB Regulator to carry out an inspection of documentation,
both written and electronic, and gives right of access to the property of the AHB where such
documentation is held. The Head also makes it an offence to obstruct a person from carrying out
such investigations.
Head 17: Power to Issue Guidelines
Contents:
To provide that –
(1) The AHB Regulator may issue guidelines (a) on any matter related to housing services provided by an AHB or prescribed by the
Minister under this Bill,
(b) setting out the criteria for registering as an approved housing body under Head 29
or
(c) on matters relating to governance and financial management standards set out by
the AHB regulator.
(2) Guidelines may be given generally or for particular purposes (and different guidelines
may be issued for different AHBs or for different areas or cases).
(3) Before issuing, revising or withdrawing general guidelines, the Regulator may consult
with -
(a) the Minister,
(b) tenants of relevant AHBs or their representatives, and
(c) AHBs or their representatives.
(4) The AHB Regulator may provide a copy of such guidelines to lenders of AHBs or their
representatives, including local authorities.
(5) The AHB Regulator must make arrangements for bringing its guidelines (and any
revision or withdrawal) to the attention of the relevant AHB.
Head 17: Notes:
Subhead 17(1) is intended to give guidance powers to the AHB Regulator in the form of guidelines
relating to matters concerning housing services provided by AHBs, the criteria for registering a body
as an AHB and matters relating to standards of governance and financial management of AHBs.
Subhead 17(2) provides that guidelines may be given generally or for particular purposes.
Subhead 17(3) sets out the consultative options of the AHB Regulator for the purposes of this Head.
Subhead 17(4) provides that the AHB Regulator may provide a copy of such guidelines to lenders of
AHBs or their representatives, including local authorities. This is considered an important provision
in building confidence in the AHB Regulator and the AHB Sector.
Subhead 17(5) provides that the AHB Regulator must bring its guidelines to the attention of the
relevant AHB.
Head 18: Assessment Powers
Contents:
To provide that –
(1) The AHB Regulator may make an assessment of an AHBs financial well-being or
standards of governance and performance.
(2) Notwithstanding the provisions of subhead (1), when assessing an AHB, the AHB
Regulator must have regard to standards set under Head 13 (1), and may have
regard to (a) the level and quality of housing services provided by the AHB including the
level of rents and other service charges,
(b) any relevant engagement plans, and
(c) any relevant guidance or code issued by the AHB Regulator.
Head 18 Notes:
The purpose of this provision is to give assessment powers to the AHB Regulator in relation to an
AHB’s financial well-being or standards of governance and performance. The head obliges the
regulator to have regard to standards set and may also have regard to the level and quality of housing
services provided by the AHB, any relevant engagement plans and any relevant guidance or code
issued by the AHB Regulator.
Head 19: Publishing Powers
Contents
To provide that –
(1) The Regulator may publish performance reports containing –
(a) an assessment of an AHBs performance in achieving the financial and
governance standards set out by the AHB Regulator, and
(b) the identity of any AHB considered to have failed to meet those standards.
(2) The Regulator may include in a performance report –
(a) information about regulatory interventions made by the AHB Regulator,
(b) information about the financial well-being of an AHB generally,
(c) such other information about the financial well-being or standards of
governance of AHBs which the AHB Regulator considers likely to be useful to—
(i) funders of AHBs , or
(ii) persons who are, or who may become, tenants of AHBs or other recipients of
housing services provided by AHBs.
(3) The Regulator must publish an assessment where an intervention power requiring a
High Court Order has been initiated or where an engagement plan has been
required from an AHB subject to provisions of Head 21.
Head 19 Notes:
One of the guiding principles of the Voluntary Regulation Code was accountability both to tenants
and stakeholders including funders. Giving publishing powers to the regulator is intended to enhance
this principle for the consumer.
Subhead 19(1) will allow the regulator to publish a performance report containing an assessment of
an AHBs performance in achieving the financial and governance standards set out by the AHB
Regulator and the identity of any AHB considered to have failed to meet those standards.
Subhead 19(2) details the type of information which may be included in such a report.
Subhead 19(3) obliges the regulator to publish an assessment where an intervention power has been
required. Such intervention powers (contained under Heads 20 to 26) are required generally where an
AHB is, or is at risk of, failing –
(a) to achieve a standard set out by the Regulator,
(b) there has been misconduct or mismanagement in a AHBs financial or other affairs, or
(c) that any other conduct by an AHB justifies requiring it to submit an engagement plan.
Head 20- AHB Annual Returns
Contents
(a) that
To provide
(b)
(1)(c)The Registrar of Companies shall, as soon as practicable after receiving the annual
return of a company in respect of which it has received a notification under Subhead
(d)
30(13) give a copy of that annual return and copies of all documents annexed to the
(e)
annual return to the AHB Regulator.
(2) The Registrar of Friendly Societies shall, as soon as practicable after receiving the
annual return of a registered society in respect of which it has received a notification
under section 30(13), give a copy of that annual return and copies of all documents
annexed to the annual return to the AHB Regulator.
(3) An AHB that has availed of an exemption under the Companies Act 2014 from the
obligation to file accounts with the Companies Registration Office must submit the
accounts directly to the AHB Regulator.
(4) An annual return submitted to the AHB Regulator under this section and any document
attached thereto shall be kept by the AHB Regulator for such period as it thinks fit.
(5) Subject to any enactment or rule of law prohibiting the disclosure of information, the
AHB Regulator shall make available for inspection by members of the public all annual
reports and documents attached thereto that remain in its keeping in accordance with
Subhead 20 (4) at all reasonable times during the period for which it continues to remain
in its keeping or such lesser period as it considers appropriate and at such place or places
as it determines.
Head 20 Notes:
The purpose of this provision is to enable the AHB Regulator to have view of audited annual returns
of the receipts, expenditure, funds and effects of AHBs registered under the Companies Acts 2014 and
the Industrial and Provident Acts 2014. Reference subheads (1) and (2).
Subhead 20(3) This subhead is inserted to cover those AHBs registered with the CRO and who have
availed of the exemption from filing financial returns under Section 350 of Companies Act 2014.
Subhead (3) obliges such AHBs to submit their accounts directly to the AHB Regulator.
Subhead 20(4) is included to allow the AHB Regulator to keep such documentation for such a period
as the Regulator sees fit.
Subhead 20(5) is intended to oblige the AHB Regulator to make available annual returns in its
keeping for public inspection.
Head 21: Intervention Power – Engagement Plans
Contents:
To provide that (1) This Head applies where the AHB Regulator, having made inquiries or
otherwise, considers that –
(a) an AHB is, or is at risk of, failing to achieve a standard set out by the
Regulator,
(b) there has been misconduct or mismanagement in a AHBs financial or other
affairs, or
(c) that any other conduct by an AHB justifies requiring it to submit an
engagement plan.
(2) The AHB Regulator may require the AHB to submit, by such time as the AHB
Regulator may specify, an engagement plan setting out how and by when the
AHB proposes to rectify or avoid the failure or other problem.
(3) The AHB Regulator may require the AHB to provide information on how it has
involved its tenants in the preparation of an engagement plan.
(4) The AHB Regulator may issue guidance to the AHB setting out how it intends to
measure progress toward meeting an engagement plan.
(5) The AHB Regulator may approve (with or without modifications or additional
conditions) or reject an engagement plan submitted to it.
(6) The AHB Regulator must not—
(a) approve an engagement plan submitted by an AHB with modifications or
additional conditions, or
(b) reject an engagement plan submitted by an AHB,
unless it has given the AHB notice of its intention to do so and has had regard to
any views expressed by the AHB within such period as the AHB Regulator may
specify in the notice.
(7) An approved engagement plan must be implemented by the AHB concerned.
(8) Where an engagement plan is rejected, the AHB must submit a revised plan to
the AHB Regulator by such time as the AHB Regulator may specify.
Head 21 Notes:
The purpose of this Head is to provide for engagement intervention procedures to be put in place by
an AHB in consultation with the AHB Regulator.
Subhead 21(1) sets out the circumstances where engagement plans will be considered necessary. In
essence engagement procedures will be considered appropriate where the AHB Regulator considers
that an AHB is, or is at risk of, failing to achieve a standard, where there has been misconduct or
mismanagement in a AHBs financial or other affairs or where any other conduct by an AHB justifies
requiring it to submit an engagement plan for example, over indebtedness/inadequate sinking funds
/risk to tenant welfare.
Subhead 21(2) is intended to give power to the AHB Regulator to require the AHB to submit, an
engagement plan setting out how and by when the AHB proposes to rectify or avoid the failure or
other problem.
Subhead 21(3) allows the AHB Regulator to require the AHB to provide information on how it has
involved its tenants in the preparation of an engagement plan.
Subhead 21(4) enables the AHB Regulator to issue specific guidance to an AHB on how it intends to
measure progress towards meeting an engagement plan.
Subhead 21(5) allows the regulator to approve (with or without modifications or additional
conditions) or reject an engagement plan submitted to it.
Subhead 21(6) obliges the regulator to give the AHB notice of its intention to approve, modify or
reject an engagement plan and must have regard to any views expressed by the AHB within such
period as the Regulator may specify in the notice.
Subhead 21(7) obliges the AHB to implement an approved engagement plan
Subhead 21(8) provides that where an engagement plan is rejected, the AHB must submit a revised
plan to the AHB Regulator by such time as the Regulator may specify.
Head 22: Enforcement
Content
To provide that (1) Where an AHB is, or is at risk of, failing to implement an engagement plan under
Head 21, the AHB Regulator may serve an enforcement notice if, having made
inquiries or otherwise, it considers –
(a) that there has been misconduct or mismanagement in an AHB’s financial
or other affairs,
(b) that the interests of an AHB tenant need protection,
(c) that an AHB’s assets need protection,
(d) that an AHB’s financial viability is in jeopardy, or
(e) that any other conduct by an AHB justifies serving an enforcement notice.
(2) An enforcement notice is a notice given in writing to the AHB concerned,
requiring the AHB to take action –
(a) to rectify or avoid a failure or other problem, or
(b) to protect its tenants or assets.
(3) An enforcement notice must –
(a) say why it has been served, and
(b) state by when the AHB must take action.
(4) The enforcement notice shall (a) include information regarding the submission of an objection and the making
of an appeal in relation to the notice, specifying –
(i) the form and manner of an objection,
(ii) the form and manner of an appeal, and
(iii) the address of the AHB regulator for the purpose of submitting an
objection under subhead (5) or notifying the AHB regulator of an appeal
under subhead (6) as the case may be,
(b) contain a statement that if an objection is not submitted in accordance with
subhead (5) and within the period specified in that subsection then –
(i) the notice will be treated as not disputed, and
(ii) the AHB will be deemed to have accepted the notice and to have agreed to
comply with the direction within the period specified therein, and
(iii) be signed and dated by the AHB Regulator.
(5) An AHB aggrieved by an enforcement notice may, within 14 days beginning on the
day on which the notice is given to it, submit an objection to the notice in the form
and manner specified in the notice, and the AHB Regulator shall consider the
objection and, as it sees fit, vary, withdraw, cancel or confirm the notice and shall
notify the AHB in writing of the decision and the reasons for the decision within 14
days after receipt of the objection.
(6) The AHB may, no later than 14 days after the decision under subhead (5) is
notified by the regulator to it, appeal the decision to a judge of the District Court
in the district court district in which the notice was served.
(7)
(a) An AHB who appeals under subhead (6) shall at the same time notify the AHB
Regulator in writing of the appeal and the grounds for the appeal.
(b) The AHB Regulator shall be entitled to appear, be heard and adduce evidence
on the hearing of the appeal.
(c) In determining an appeal under subhead (6), the judge of the District Court
may confirm, vary or cancel the enforcement notice if he or she considers it
reasonable to do so.
(8)
Where an objection is submitted under subhead (5) and no appeal is made under
subhead (6) against the decision of the AHB Regulator and the enforcement notice
is neither withdrawn nor cancelled, the notice takes effect on the later of the
following:
(a) the day after the day on which the notice is confirmed or varied;
(b) the day after the objection is withdrawn by the AHB;
(c) the date specified in the notice.
(9)
Where an appeal is made under subhead (6) and the enforcement notice is neither
withdrawn nor cancelled, the notice takes effect on the later of the following:
(a) the day after the day on which the notice is confirmed or varied on appeal;
(b) the day after the appeal is withdrawn by the AHB;
(c) the date specified in the notice.
(10) Where no objection is submitted under subhead (5) the enforcement notice takes
effect on the date specified in the notice.
(11) The AHB Regulator may—
(a) withdraw an enforcement notice at any time, or
(b) where no objection is submitted or appeal made or pending, extend the date
specified in the notice for the purposes of subhead 4(b)(iii).
(12) Withdrawal of an enforcement notice under subhead (11) does not prevent the
giving of another enforcement notice, whether in respect of the same matter or a
different matter.
(13) Failure by an AHB to comply with an enforcement notice may be considered an
offence.
Head 22 Notes:
The purpose of this Head is to set out enforcement procedures for the AHB Regulator to enable
enforcement where an AHB is, or is at risk of, failing to implement an engagement plan.
Subhead 22(1) sets out the circumstances which the AHB Regulator could consider in assessing the
risk of failure to implement engagement plan. These circumstances include where:
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there has been misconduct or mismanagement in an AHB’s financial or other affairs,
the interests of an AHB tenant need protection,
an AHB’s assets need protection,
an AHB’s financial viability is in jeopardy, or
any other conduct by an AHB justifies serving an enforcement notice.
Subhead 22(2) provides for what action may be required from an AHB in an enforcement notice.
Subhead 22(3) provides that an enforcement notice must say why it has been served and state by
when the AHB must take action.
Heads 22(4) to (12) detail the procedures relating to the serving of an enforcement notice and fair
procedures in terms of appealing the notice where an AHB is aggrieved by a decision of the AHB
Regulator. These provisions will allow the AHB to appeal the decision of the Regulator within 14
days of service of the notice and will also allow the Regulator a right of reply. A provision for appeal
to the District Court is also included under subhead (6)
Subhead 22(13) makes failure to comply with an enforcement notice an offence.
Head 23: Power to remove, suspend or appoint AHB officers or employees
Contents
To provide that (1) Where, having made inquiries, the AHB Regulator considers (a) that there has been a failure to implement an engagement plan, or
(b) that there is failure to comply with an Enforcement Notice
(c) that there has been a misconduct or mismanagement in an AHB’s financial or
other affairs, or
(d) if any other conduct by a person is impeding the proper management of the AHBs
affairs,
and that as a result of (a), (b), (c) or (d), there is a serious risk to the financial viability
of the AHB, the AHB Regulator may apply to the High Court for an order to suspend
or remove an officer or employee of the AHB and upon such an application, the High
Court may make such an order if it considers it’s appropriate.
(2) A suspension under subhead 23(1) ceases to have effect—
(a) if the AHB Regulator removes the individual or lifts the suspension, or
(b) where the AHB Regulator does not so act, on the day falling 6 months after the
inquiries concerned are concluded.
(3) The AHB Regulator may give the AHB directions about—
(a) the performance of a suspended individual’s functions, or
(b) any other matter arising from the suspension,
and may appoint an individual, on such terms as it thinks fit, to perform the
suspended individual’s functions.
(4) It is for the AHB to pay the remuneration and expenses of any individual appointed
under subhead (3).
(5) It is an offence for a suspended individual to take any action in relation to the
management or control of—
(a) the AHB concerned, or
(b) any other AHB,
without the AHB Regulator’s consent.
(6) A person removed or suspended under subhead (1) may appeal to the High Court.
Head 23 Notes:
The purpose of this provision is to enable the AHB Regulator by application to the High Court for an
order to step in where the conduct of an individual officer or employee of the AHB is impeding the
proper management of the AHBs affairs in terms of its viability as a housing provider.
Subhead 23(1) sets out the circumstances when the AHB Regulator may apply to the High Court and
specifies that in particular this type of application may be made where there is serious risk to the
financial viability of the AHB.
Subhead 23(2) sets out the circumstances when a suspension may cease to exist.
Subhead 23(3) allows the AHB Regulator to give directions to the AHB about the suspended
officer’s functions.
Subhead 23(4) covers remuneration costs of replacing individuals.
Subhead 23(5) makes it an offence for a suspended person to continue carrying out his or her
functions while suspended.
Subhead 23(6) makes provision for an individual to appeal any such decision to the High Court.
Head 24: Appointment of manager for financial and other affairs
Contents
To provide that –
(1) Where, having made inquiries, the AHB Regulator considers (a) that an AHB is, or is at risk of, failing(i) to achieve a standard set out by the AHB Regulator,
(ii) to implement an engagement plan, or
(iii) to comply with an Enforcement Notice, and
(b) that a person needs to be appointed in order to ensure that the AHB manages its
financial or other affairs to an appropriate standard,
and that as a result of (a) or (b) there is a serious risk to the financial viability of the
AHB, the AHB Regulator may apply to the High Court for an order to appoint, or
require the AHB to appoint, a manager or interim manager to manage its financial
and other affairs generally, or to manage particular aspects of those affairs and
upon such an application, the High Court may make such an order if it considers its
appropriate.
(2) It is for the AHB Regulator to determine the terms on which a manager or interim
manager is to be appointed including as to period of appointment and remuneration
and expenses.
(3) It is for the AHB to pay the manager’s remuneration and expenses.
(4) A manager or interim manager has (a) general powers to do anything required to perform the manager’s functions
(including power to enter into agreements or do anything else which the AHB
has power to do), and
(b) such specific powers as the AHB Regulator may specify under subhead (2).
(5) A manager or interim manager must comply with any direction by the AHB
Regulator about the performance of the manager’s functions and may be removed
on failure to so comply.
(6) A manager acts as the AHB’s agent and is accordingly not personally liable on an
agreement entered into as manager.
Head 24 Notes:
This provision is intended to enable the AHB Regulator, by application to the High Court for an order,
to appoint an interim manager to manage the affairs of an AHB where the financial viability of the
AHB is at risk. The intervention to appoint an interim manager in such cases is a vital component of
step-in intervention by the AHB Regulator and is provided for in order to protect assets which have
been funded by the state or indeed by private investors for the provision of social housing. The
purpose is to allow the regulator an immediate step-in power that can mitigate the effects of possible
insolvency within the AHB sector. The provision will also have the effect of ensuring that the tenants
are protected.
Although this provision may never be exercised in practice, the ability of the AHB Regulator to call
upon it if necessary provides considerable assurance for tenants, government and investors.
The Department considers this intervention powers to be fair and proportionate in order to ensure
sound governance controls within the AHB sector and to enable well governed, financially viable
organisations to meet housing need.
Subhead 24(1) provides that the power to appoint an interim manager can only be used where there is
a serious risk to the financial viability of the AHB and where an AHB is, or is at risk of, failing to
achieve a standard set out by the AHB Regulator, to implement an engagement plan, or to comply
with an enforcement notice, and where it is considered that a person needs to be appointed in order to
ensure that the AHB manages its financial or other affairs to an appropriate standard.
Subhead 24(2) gives power to the AHB Regulator to determine the terms and conditions for
appointment of an interim manager.
Subhead 24(3) clarifies that remuneration costs of the manager will be borne by the AHB.
Subhead 24(4) gives general powers to the manager to perform the manager’s functions.
Subhead 24(5) obliges the appointed manager to with any direction by the AHB Regulator about the
performance of the manager’s functions and may be removed on failure to comply.
Subhead 24(6) is intended to protect the appointed manager from personal liability on agreements
entered into as manager. The subhead therefore places the appointed manager as the AHBs agent.
Head 25: Asset protection – restrictions on dealings during or following inquiries
Content
To provide that –
(1) Where, having made inquiries, the AHB Regulator considers (a) that there has been misconduct or mismanagement in an AHB’s financial or other
affairs,
(b) that the interests of an AHB’s tenants need protection,
that an AHB’s assets need protection,
that as a result of (a) and (b) there is a serious risk to the financial viability of the AHB,
the AHB Regulator may apply to the High Court for an order to –
(i) direct the AHB not to undertake particular transactions, or make payments of a
particular nature or amount, or
(ii) direct a bank or other person not to dispose of any money, securities or other assets
it holds for the registered AHB,
without the AHB Regulator’s consent and upon such an application, the High Court
may make such an order if it considers it is appropriate.
(2) It is an offence for a person to fail to comply with a direction made under subhead
25(1)(i).
Head 25 Notes:
This provision enables the AHB Regulator, by application to the High Court for an order, to direct an
AHB not to undertake particular transactions or make payments of a particular nature or amount and
to direct a bank or other person not to dispose of any money, securities or other assets it holds for the
AHB, without the AHB Regulators consent.
Here the ultimate function of the provision is to ensure that where an enquiry into the affairs of the
AHB is on-going with the AHB Regulator, and the AHB Regulator considers that the assets of the
AHB need protection, the AHB Regulator is enabled to have a say on dealings during and following
enquiries by giving consent to those dealings. The restriction also includes a restriction on
undertaking particular transactions. Such transactions could relate to the use of assets which have
been acquired by the AHB for the purpose of the provision of housing as collateral to raise private
finance without the AHB Regulators consent.
This intervention proposal is considered a vital component of step-in intervention by the AHB
Regulator and is provided for in order to protect assets which have been funded by the state or indeed
by private investors for the provision of social housing. The provision is regarded as being a fair,
reasonable and proportionate provision taking into account the necessity for the AHB Regulator to
respond appropriately and timely to the external environment and risks identified within the sector.
The purpose of this Head is to protect the assets of an AHB in the event that there has been a
misconduct or mismanagement in an AHB’s financial or other affairs, that the interests of an AHB’s
tenants need protection, that an AHB’s assets need protection, and that an AHB’s financial viability is
in jeopardy. In this respect the Head provides that the AHB Regulator may direct the AHB not to
undertake particular transactions or make particular payments without the regulators consent. The
head also intends to allow the AHB Regulator, by order of the High Court, to direct a bank or other
person not to dispose of any securities it holds for the AHB - Subhead 25(1).
The Head makes it an offence for an AHB to make such transactions in those circumstances without
the AHB Regulators consent – Subhead 25(2).
Head 26: Asset Protection – Power to give, or refuse to give consent, to disposal of assets
Contents
To provide that –
(1) Notwithstanding the provisions of Head 11(4), the AHB Regulator may, having made
inquiries, give, or refuses to give, consent to disposal of assets.
(2) The AHB Regulator shall produce a set of guidance on consent to dispose of assets within
6 months of commencement of this provision.
(3) The AHB regulator may –
a) Give general consent to certain disposals, or
b) Give consent for particular purposes (for example for particular AHBs, particular
land or particular disposals).
(4) The AHB Regulator’s consent may be conditional.
(5) A disposal of assets by an AHB for which the AHB Regulator’s consent is required is
void if the AHB Regulator does not consent to the disposal before it is made.
Head 26 Notes:
Head 11(4) obliges an AHB to apply for consent to dispose of assets from the AHB Regulator. The
purpose of Head 26 is to enable the AHB Regulator to make a decision on that application.
This provision enables the regulator, to give, or refuse to give consent to the disposal of assets which
have been acquired by the AHB for the purpose of the provision of social housing supports. The
circumstances in which the AHB Regulator is likely to use this power is when an AHB wishes to raise
finance by using assets including land which were acquired by the AHB for the purpose of the
provision of social housing support.
This proposed power of consent may have some impact on constitutional property rights however the
provision is considered a vital component of regulation and is provided for in order to protect assets
which have been funded by the state or indeed by private investors for the provision of social housing.
The provision is regarded as being a fair, reasonable and proportionate provision taking into account
the necessity for the AHB Regulator to respond appropriately and timely to the external environment
and risks identified within the sector.
The Department has looked to the Scottish Regulator Regulatory Guidance on Consent to disposals of
land or assets (April 2012) and considers that this Bill should give scope to the AHB Regulator to
produce specific guidance to AHBs on their obligation to apply for consent to the AHB Regulator
Subhead 26(2).
Subhead 26(3) allows the AHB Regulator to give a general consent to certain disposals. This is
intended to give some flexibility to AHBs to self- regulate certain disposals.
Subhead 26(4) is intended to allow the AHB Regulator’s consent to be conditional for example a
condition may be that the funds raised from disposals will be used by the AHB to invest in social
housing.
Subhead 26(5) makes void a disposal that is made by an AHB without the AHB Regulators consent
and for which consent was necessary.
Head 27: Asset protection - transfer of assets following inquiries
Contents
To provide that –
(1) Where, having made inquiries, the AHB regulator considers (a) That there has been a failure to implement an engagement plan,
(b) That there has been a failure to comply with an Enforcement Notice,
(c) That there has been misconduct or mismanagement in an AHB’s financial or
other affairs, and
(d) that the AHB Regulator considers that a transfer of some or all of an AHB’s assets
would improve the management of the assets,
and as a result of (a), (b), (c), or (d) there is a serious risk to the financial viability of
the AHB, the AHB Regulator may apply to the High Court for an order to transfer
some or all of its assets to another AHB and, the High Court may make such an order
if it considers it is appropriate.
(2) Subject to the provisions under subhead (1) the AHB Regulator may direct the AHB
to transfer some or all of its assets to another AHB.
(3) The AHB must inform the tenants of any transfer of houses relating to their tenancy
which are subject to a direction under subhead (2).
(4) The AHB Regulator must consult with (a) the relevant local authority, and
(b) any lender whom the AHB Regulator knows to hold security over those houses.
(5) When making a direction under subhead (2), the AHB Regulator must have regard to
any views expressed by those consulted under subhead (4)(a) and (4)(b) by such time
as the AHB Regulator may specify.
(6) A transfer of assets under a direction must be made on terms specified in, or
determined in accordance with, the direction.
(7) Those terms must however –
(a) in the case of a transfer of some (but not all) of an AHB’s assets, set the price at
not less than the amount which the AHB Regulator, having obtained an
independent valuation, considers the assets would fetch if sold by a willing seller
to a willing AHB, and
(b) in the case of a transfer of all of an AHB’s assets, provide for the settlement or
transfer of all the transferor’s proper debts and liabilities in respect of the assets
(whether secured or not).
Head 27: Asset protection - transfer of assets following inquiries - continued
Contents
(8) The AHB Regulator may direct the transfer of assets from an AHB only where the
AHB Regulator considers that the recipient AHB will secure the proper application
of those assets for the purposes of the provision of housing and in accordance with
the criteria as set by the AHB Regulator under Head 30.
(9) The AHB Regulator shall inform the Charities Regulator of any direction to transfer
assets of a charity registered under the Charities Act 2009 or to a charity registered
under that Act.
(10) The AHB Regulator shall inform the PRTB of any direction to transfer assets to
another AHB.
Head 27 Notes:
This provision will allow the AHB Regulator, by application to the High Court for an order, to direct
an AHB to transfer some or all of its assets to another AHB. The circumstances in which the
Regulator is likely to use this power is when an AHB presents as having serious financial difficulties
to the point that the AHBs viability is in jeopardy for financial or governance reasons.
It is considered that should such a situation occur the security of tenure of the tenants would be at risk
and the assets of the AHB would need protection. In addition, in such a scenario the entire sector is
liable to serious reputational damage and loss of investor confidence.
While this power may never be exercised in practice, the ability of the AHB Regulator to call upon it
if necessary provides considerable assurance for tenants, government and investors that there will be
continued provision of housing as set out in the terms and conditions of funding for the assets
concerned. For this reason the provision is regarded as a fair, reasonable and proportionate provision
taking into account the property rights of the AHB.
Subhead 27(1) provides that this provision will apply primarily where it has been established that the
AHB’s viability is in jeopardy for financial or governance reasons and the regulator considers that a
transfer of some or all of an AHB’s assets would improve the management of the assets.
Subhead 27(2) allows the AHB Regulator to direct the AHB to transfer some or all of its assets to
another AHB subject to order by the High Court.
Subhead 27(3) puts the onus on the AHB to inform its tenants of any transfer of houses relating to
their tenancy.
Subhead 27(4) places a duty on the AHB Regulator to consult with the relevant local authority, and
any lender whom the regulator knows to hold security over those houses.
Subhead 27(5) places a duty on the AHB Regulator to have regard to any views expressed by those
consulted under subhead (4) in making a direction regarding the transfer of any assets.
Subhead 27(6) provides that a transfer of assets under a direction must be made on terms specified in
the direction.
Subhead 27(7) provides for the terms of transfer of assets which will be contained in the direction
given under subhead (2) by the AHB Regulator. The provision allows the AHB Regulator to decide
the value of the assets to be transferred. In respect of the transfer of some and not all of the assets, the
AHB Regulator is obliged to seek an independent valuation based on what the assets would fetch if
sold by a willing seller to a willing AHB. In the case of a transfer of all of an AHB’s assets, the
provision allows the AHB Regulator to direct a settlement or transfer of all the transferor’s proper
debts and liabilities in respect of the assets (whether secured or not).
Subhead 27(8) is inserted to secure the proper application of those transferred assets for the purposes
of the provision of housing and in accordance with the criteria as set by the AHB Regulator under
Head 29.
Subhead 27(9) allows the AHB Regulator to inform the Charities Regulator on any direction to
transfer assets under this Head.
Subhead 27(10) allows the AHB Regulator to inform the PRTB of any direction to transfer assets to
another AHB under this Head.
Head 28: Financial Assistance in the event of transfer of assets
Contents
To provide that (1) The AHB Regulator shall establish a fund for the purpose of providing financial
assistance to a recipient AHB where it thinks it advances a fundamental objective
pursuant to subhead 27(8).
(2) Each AHB registered with the Regulator shall be obliged to make an annual
contribution to the fund established by subsection (1).
(3) The amount of the contribution to be paid by each AHB or class of AHB to the fund
in respect of a particular year shall be determined and published by the Regulator.
(4) Financial assistance from the fund may only be given to a recipient AHB for taking
on a debt in the case of transfer of all or some of the transferor’s proper debts and
liabilities.
(5) Financial assistance under subhead (1) may be given by lending money to an AHB.
(6) The contributions made to the fund shall be held in a separate account and in a
manner which identifies those funds as belonging to the fund and such funds shall
not be used or expended for any purpose other than provided for in this Head.
(7) Financial assistance under subsection (4) may be given on conditions which may
include a provision for repayment, with or without interest.
Head 28 Notes:
This Head provides for the establishment of a fund to provide financial assistance in order to facilitate
transfer of assets to another AHB where it is deemed necessary. It would be necessary where the debt
of an AHB out-weighs its assets. The provision will allow the regulator to give financial assistance
to an AHB for taking on that debt in the case of transfer of some or all the transferor’s proper debts
and liabilities.
In the current climate such a fund may not be feasible given the diversity in size and scale of AHB
operations (a recent analyses of the AHB Housing Stock Profile One year on -The Regulation of
AHBs in Ireland, shows that 10% of the AHB sector currently deliver almost 80% of the housing
stock provided by AHBs). The purpose of this provision however is for future proofing and this
provision is not likely to be commenced until the AHB sector has matured sufficiently for a fund to be
fair and equitable across the sector.
Subhead 28(2) and 28(3) provide that the each AHB shall make an annual contribution to the sinking
fund and that the Regulator will publish annually the contribution required of AHB or class of AHB to
the fund.
Head 29: Moratorium in the event of Insolvency
Contents
To provide that –
(1) Notwithstanding the provisions of Head 11(3)(b) a moratorium of 56 days may be set
by the AHB Regulator on the disposal of AHB assets upon notification by the AHB to
the AHB Regulator that insolvency procedures have been commenced.
(2) The AHB Regulator may extend the moratorium from time to time (but may do so
only with the consent of all of the AHB’s secured creditors whom the AHB Regulator
can locate (after making reasonable enquiries).
(3) The AHB Regulator must give notice of any extension referred to in subhead 29(2)
to—
(a) the AHB, and
(b) any liquidator, administrative receiver, receiver or administrator appointed in
respect of the AHB or its assets.
(4) The AHB Regulator must give notice of a moratorium ending to—
(a) the AHB, and
(b) all of the AHB’s secured creditors whom the AHB Regulator can locate after
making reasonable enquiries.
(4)
During a moratorium the AHB Regulator may appoint, or require the AHB
to appoint, an interim manager, subject to the provisions of Head 24 —
(a) to manage its housing activities or its financial and other affairs generally, or
(b) to manage particular aspects of those activities or affairs.
Head 29: Notes:
The thinking behind a provision like this is to give appropriate step in time for the AHB Regulator to
take action to protect assets in the event of an AHB becoming insolvent and at an early stage during
that insolvency process.
A further purpose of the moratorium is to allow time for the AHB Regulator to put an interim
manager in place if it sees fit.
Head 30: Register of Approved Housing Bodies
Content
To provide that (1) It shall be a function of the AHB Regulator to register applicant housing bodies by
granting approval for approved housing body status.
(2) The AHB Regulator shall set criteria for the eligibility for registration having regard
to (a) Financial position,
(b) Constitution, and
(c) Other arrangements for its management.
(3) When setting criteria for eligibility for registration, the AHB Regulator shall consult
with the Minister and relevant stakeholders.
(4) A body may be approved for the purposes of this Head by the AHB Regulator with
or without conditions.
(5) Notwithstanding the provisions of subhead (2), in granting approval under subhead
(1) the AHB Regulator shall only consider the following bodies for approval:
(a)
Limited Companies formed by guarantee of their members and not having a
shareholding, registered under the Companies Act 2014,
(b)
Societies registered under the Industrial & Provident Societies Acts 1893 to
2014, and
(c)
Trusts incorporated under the Charities Acts.
(6) A body seeking to obtain, and to retain, approved status under this Head must:(a)
Having regard to Head 30, have as its primary objects (i) the provision of social housing support and
(ii) the management of housing in relation to the provision of social
housing supports,
Head 30: Register of Approved Housing Bodies – cont’d
in the Republic of Ireland, and
(b)
Have in its memorandum of association or registered rules, as the case may
be, provisions prohibiting the distribution of any surplus, profit, bonus of
dividend to members and requiring that the assets of the body be applied
solely towards its objects.
(7) The power to approve of a body for the purposes of this section shall be construed as
including the power to amend the terms of such approval or to withdraw such
approval.
(8) The AHB Regulator may by written notification to the approved housing body
amend or revoke an approved status granted under subhead (1) in the event of (a) the body ceasing to comply with the condition of approved status,
(b) Non-compliance with the provisions of this Bill,
(c) Non-compliance with the terms and conditions of exchequer funded capital or
current funding schemes, or
(d) Non-compliance with the regulatory standard as set out by the AHB Regulator
under Head 13.
(9) The AHB Regulator shall, from time to time, review each entry in the register and, if
it becomes aware that any particular in the register is incorrect or has ceased to be
correct, it shall make such alterations to the register as it considers necessary and
notify the AHB concerned in writing of any such alteration.
(10)
If, after the making of an application to register as an approved housing body
under this Head, but before the making of a decision by the AHB Regulator in
respect of the application, that applicant organisation is convicted on indictment of
an offence, the organisation shall not be eligible to be registered for the purposes of
this Head before the expiration of one year, from the date of the conviction, and the
AHB Regulator shall not, before such expiration, perform any functions in relation
to that organisation under this section.
(11)
A person who, in purported compliance with this Head, knowingly or
recklessly provides information or a particular to the AHB Regulator that is false or
misleading in a material respect, or who believes any such information or particular
when provided by him or her, in purported compliance with that subhead, not to be
true, shall be guilty of an offence.
(12)
The AHB Regulator shall make the register available for inspection by
members of the public at all reasonable times at its principal office and shall also
publish the register on the internet.
(13)
The AHB Regulator shall, as soon as may be after the registration by it in the
register of an AHB, notify in writing of such registration(a) the Registrar of Companies in the case where the organisation is a limited
company, or
(b) the Registrar of Friendly Societies in writing of such registration in the case
where the organisation is a society registered under the Industrial Provident
Societies Acts, 1893 – 2014, and/or
(c) the Charities Regulator where the organisation is operating as a charity, and
(d) the Private Rented Tenancies Board.
(14)
Registered AHBs may apply to the AHB Regulator for consent to de-register.
(15)
In determining whether a registered AHB should be removed from the
register the AHB Regulator shall take the following matters into consideration –
(a) existing tenancy arrangements,
(b) financial and governance structures of the registered AHB, and
(c) any development plans of the registered AHB for the provision of social housing
supports.
Head 30 Notes:
Head 30 is intended to give powers to the AHB Regulator to grant approved housing body status to
bodies seeking approval in respect of the provision of housing. Currently this power rests with the
Minister under Section 6 (6) of the Housing (Miscellaneous Provisions) Act 1992. This Head will
have the effect of repealing that subsection and introducing new powers to the AHB Regulator to
grant approved housing body status to defined bodies.
It is intended that all bodies which have been approved under Section 6(6) of the Housing
(Miscellaneous Provisions) Act 1992 will be deemed as registered and this is provided for under Head
31. By virtue of the fact that an AHB is registered does not mean that the body has been given a
stamp of approval by the Regulator. Registration means that the AHB is in agreement to come under
the watching brief of the Regulator in order to enable the Regulator to intervene where necessary.
Subhead 30(2) and (3) gives further powers to the regulator to set criteria for eligibility subject to
consultation with the Minister and any relevant stakeholders.
Subhead 30(4) sets out the type of bodies which may be considered for approved housing body
status. The criteria for approved housing body status has up to now been contained in Part 2 of the
Department’s Memorandum VHU: 2/02 Capital Funding Schemes for the Provision of Rental
Accommodation by Approved Housing Bodies, May 2002. This subhead puts those criteria on a
statutory footing.
Subhead 30(6) provides that the body seeking approved status must have as its primary objective the
provision of social housing support, or the management of housing in relation to the provision of
social housing supports, in the Republic of Ireland. These functions of AHBs with regard to the
provisions of social housing supports are set out under Head 30.
Subhead 30(7) The purpose of this subhead is to provide that the authority to amend or withdraw
approved housing body status is also delegated to the AHB Regulator.
Subhead 30(8) lists out the events under which approved housing body status may be revoked.
Subhead 30(9) is intended to allow the AHB Regulator to make alterations to the Register of AHBs.
Subhead 30(10) puts a stay of one year on applicant organisations that have been convicted of an
offence.
Subhead 30(11) makes it an offence to provide false or misleading information to the AHB
Regulator.
Subhead 30(12) places a duty on the AHB Regulator to make the Register of AHBs publicly
available.
Subhead 30(13) places a duty on the AHB Regulator to inform the Company Registration Office the
registrar for Friendly Societies , the Charities Regulator and the PRTB in writing of a registration
under this Head.
Subhead 30(14) and (15) allow for an AHB to apply to be removed from the register and the criteria
for examination of such an application.
Head 31: Function of the Approved Housing Body
Contents
To provide that –
(1) It shall be a function of the Approved Housing Body to provide housing for
households qualified for social housing support under Section 20 of the Housing
(Miscellaneous Provisions) Act 2009.
(2) The provisions of subhead 31(1) are subject to any other provisions under this Act
and any regulations made thereunder.
Head 31 Notes:
Section 6 of the Housing (Miscellaneous Provisions) Act 1992 provides that a body seeking to obtain
approved status must have as its primary objective the relief of housing needs, or poverty or hardship
or the welfare of Travellers, and the provision and management of housing. This Bill will repeal
Section 6 and so there is a necessity to replace that provision having regard to the role of an AHB to
provide housing.
Head 32: AHBs deemed to be Registered
Contents
To provide that –
(1) All housing bodies standing approved under Section 6 of the Housing (Miscellaneous
Provisions) Act 1992 on the date of commencement of this Section shall be deemed to
be registered in the Register of AHBs under Head 30.
Head 32 Notes:
This is standard wording to bring in all existing bodies AHBs that have been granted Approved
Housing Body status by the Minister under Section 6 of the Housing (Miscellaneous Provisions) Act
1992.
Regulation has a key role to play, not just in protecting tenants and safeguarding public investment in
social housing, but in the delivery of social housing.
The presence of regulatory oversight for all AHBs is critical in building the confidence of lenders to
invest in the sector and in building the capacity of the sector to take on new risk. Under the interim
Regulatory Framework the focus has been and continues to be on embedding regulatory awareness of
the benefits of regulation. During this process there has been much evidence of good practice coupled
with other areas that have been identified for improvement (reference Regulation Office 2014 Annual
Report and Sectoral Analysis).
The Bill is intended as an enabling framework for all AHBs. Provisions such as obligations of AHBs
to register and provide information on their performance management (reference Head 11) and
guidance to the sector (Head 17) are an integral part of this process. Similarly the provisions under
Head 13 on proportionality (Subhead 13(1)(a)(iii) and consultation with the sector (Subhead 13(3) are
crucial to achieving a robust enabling regulatory framework for regulating the sector as a whole.
The intent behind this Head is to ensure that all bodies approved for the provision of social housing
come within the purview of the Regulator and that there is no residual cohort of un-regulated bodies.
It is not the intention that registration confers a stamp of approval.
Head 33: Provision to make an appeal against a decision of the AHB Regulator
Contents
Provides that (1) A body may appeal to the District Court against a decision of the AHB Regulator—
(a) to refuse to register it as an Approved Housing Body,
(b) to de-register it, or
(c) to refuse to de-register it.
(2) The AHB Regulator shall not de-register a body while an appeal is pending.
Head 33 Notes:
The purpose of this Head is to set down a legislative avenue for appeal against a decision by the AHB
Regulator regarding the Register of Approved Housing Bodies.
Head 34: Information on Offences
Contents
To provide that –
(1) The AHB Regulator shall provide any information obtained by it in the performance
of its functions that causes the AHB Regulator to suspect that an offence has been
committed by an approved housing body to (a) The Garda Siochana,
(b) The Revenue Commissioners,
(c) The Director of Corporate Enforcement,
(d) The PRTB,
(e) The Charities Regulator, or
(f) Any other person charged with the detection, investigation or prosecution of
offences, as may be appropriate, where it is not satisfied that the information has
already been reported to that person.
(2) Information provided under subhead (1) may be used by the person to whom it has
been provided for the purpose only for the detection of, investigation or prosecution
of an offence.
(3) The AHB Regulator may provide any information –
(a) obtained by it in the performance of its functions, and
(b) that causes it to suspect that an offence under the law of a state (other than the
State) has been committed by an approved housing body,
to a person charged under the law of that state with the detection, investigation of
prosecution of offences, if the person to whom it is provided gives an undertaking in
writing that the information will be used only for the purpose of the detection,
investigation or prosecution of the offence concerned.
Head 34 Notes:
The purpose of this Head is to place a duty on the AHB Regulator to provide any information
obtained by it in the performance of its functions that causes the AHB Regulator to suspect that an
offence has been committed by an AHB.
Subhead 34(1) lists the types of statutory bodies to whom this information may need to be provided.
Subhead 34(2) limits the information to information only for the purpose of the detection of,
investigation or prosecution of an offence.
Subhead 34(3) is intended to cover information received by the AHB Regulator about offences under
the law of another state.
Head 35 – Financial provisions for the AHB Regulator
Provide that (1) In each financial year, the Minister may, after consultation with the AHB Regulator,
advance to the AHB Regulator out of monies provided by the Oireachtas such sums
as the Minister may, with the consent of the Minister for Public Expenditure and
Reform, determine for the purpose of exercising its functions under Head 10.
Head 35 Notes:
The purpose of this Head is to allow the state to input finance where necessary to ensure regulatory
oversight.
Head 36: Strategy statement
Contents
Provides that (1) The AHB Regulator shall, as soon as practicable after the commencement of this
section, and thereafter not earlier than 6 months before and not later than the
expiration of each subsequent period of 3 years following that commencement,
prepare and submit to the Minister a strategy statement in respect of the period of 3
years immediately following the year in which the strategy statement is so
submitted.
(2) The Minister shall, as soon as practicable after a strategy statement has been
submitted to him or her under subsection (1), cause a copy of it to be laid before
each House of the Oireachtas.
(3) The AHB Regulator shall ensure that, as soon as practicable after copies of a
strategy statement are laid before both Houses of the Oireachtas in accordance with
subsection (2), the strategy statement is published on the internet.
(4) In this section “strategy statement” means a statement that—
(a) specifies the key objectives, outputs and related strategies, including use of
resources, of the AHB Regulator, and
(b) is prepared in a form and manner that is in accordance with any directions
issued from time to time by the Minister.
Head 36 Notes:
Head 36 provides for the preparation of a Statement of Strategy every 3 years by the AHB Regulator,
stating the specific key objectives, outputs and related strategies for the next 3 years and that the
Minister must cause a copy of it to be laid before each House of the Oireachtas.
Head 37: Annual Report and Accounts of the AHB Regulator
Contents
Provides that –
(1) The AHB Regulator shall keep in such form as may be approved by the Minister,
with the consent of the Minister for Public Expenditure and Reform, all proper
and usual accounts of all money received or expended by it and, in particular, shall
keep in such form as aforesaid all such special accounts as the Minister may, with
the consent of the Minister for Public Expenditure and Reform, from time to time
direct.
(2) Accounts kept in accordance with this section shall be submitted, not later than 1
March in the year immediately following the financial year to which they relate or
on such earlier date as the Minister may, from time to time, specify, by the AHB
Regulator to the Comptroller and Auditor General for audit and, immediately
after the audit, a copy of the accounts, and of such other (if any) accounts kept in
accordance with this section as the Minister, after consultation with the Minister
for Public Expenditure and Reform, may direct and a copy of the Comptroller and
Auditor General’s report on the accounts shall be presented to the Minister who
shall, as soon as may be, cause copies thereof to be laid before each House of the
Oireachtas.
(3)(a) The AHB Regulator shall not later than 30 June in each year prepare and
submit to the Minister a report on its activities in the immediately preceding
year, and the Minister shall, as soon as may be after receiving the report, cause
copies of the report to be laid before each House of the Oireachtas.
(3)(b) Subject to the provisions of subhead (3)(a), the AHB Regulator shall include in
its report, the performance of AHB’s in the provision of social housing support.
(4) The AHB Regulator shall arrange for a report laid before both Houses of the
Oireachtas in accordance with subsection (1) to be published on the internet as
soon as practicable after copies of the report are laid before each House of the
Oireachtas.
Head 37 Notes:
Head 37 contains standard provisions for the production of audited accounts and for the annual report
of the AHB Regulator to include a report on the performance of AHBs in the provision of social
housing. The Head provides for the report to be laid before the Houses of the Oireachtas and to be
published thereafter.
Head 38: Accountability to PAC
Contents
Provides that (1) The chief executive shall, whenever required in writing to do so by the Committee of
Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and
report to Dáil Éireann on the appropriation accounts and reports of the
Comptroller and Auditor General (in this section referred to as the “Committee”),
give evidence to that Committee in relation to—
(a) the regularity and propriety of the transactions recorded or required to be
recorded in any book or other record of account subject to audit by the
Comptroller and Auditor General that the AHB Regulator is required by
this Bill to prepare,
(b) the economy and efficiency of the AHB Regulator in the use of its resources,
(c) the systems, procedures and practices employed by the AHB Regulator for
the purpose of evaluating the effectiveness of its operations, and
(d) any matter affecting the AHB Regulator referred to in a special report of the
Comptroller and Auditor General under section 11 (2) of the Comptroller
and Auditor General (Amendment) Act 1993, or in any other report of the
Comptroller and Auditor General (in so far as it relates to a matter specified
in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.
(2) In the performance of his or her duties under this section, the chief executive shall
not question or express an opinion on the merits of any policy of the Government or
a Minister of the Government or on the merits of the objectives of such a policy.
Head 38 Notes:
Head 38 provides for accountability to the Public Accounts Committee by the Chief Executive.
Subhead 38(1) provides for the parameters of evidence the Chief Executive will be required to give
to the Committee.
Subsection 38(2) precludes the Chief Executive from questioning or expressing opinion on
Government policy whilst giving evidence to the Committee.
Head 39: Accountability to other Oireachtas Committees
Contents
Provides that (1) In this section “Committee” means a Committee appointed by either House of the
Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee
referred to in section 23 or the Committee on Members’ Interests of Dáil Éireann or
the Committee on Members’ Interests of Seanad Éireann) or a subcommittee of
such a Committee.
(2) Subject to subsection (3), the chief executive shall, at the request in writing of a
Committee, attend before it to give account for the general administration of the
AHB Regulator.
(3) The chief executive shall not be required to give account before a Committee for any
matter which is or has been or may at a future time be the subject of proceedings
before a court or Tribunal in the State.
(4) Where the chief executive is of the opinion that a matter in respect of which he or
she is requested to give an account before a Committee is a matter to which
subsection (3) applies, he or she shall inform the Committee of that opinion and the
reasons for the opinion and, unless the information is conveyed to the Committee at
a time when the chief executive is before it, the information shall be so conveyed in
writing.
(5) Where the chief executive has informed a Committee of his or her opinion in
accordance with subsection (4) and the Committee does not withdraw the request
referred to in subsection (2) in so far as it relates to a matter the subject of that
opinion—
(a) the chief executive may, not later than 21 days after being informed by the
Committee of its decision not to do so, apply to the High Court in a
summary manner for determination of the question whether the matter is
one to which subsection (3) applies, or
(b) the Chairperson of the Committee may, on behalf of the Committee, make
such an application,
and the High Court shall determine the matter.
(6) Pending the determination of an application under subsection (5), the chief
executive shall not attend before the Committee to give account for the matter the
subject of the application.
Head 39 continued
(7) If the High Court determines that the matter concerned is one to which subsection (3)
applies, the Committee shall withdraw the request referred to in subsection (2), but if
the High Court determines that subsection (3) does not apply, the chief executive shall
attend before the Committee to give account for the matter.
(8) In the performance of his or her duties under this section, the chief executive shall not
question or express an opinion on the merits of any policy of the Government or a
Minister of the Government or on the merits of the objectives of such a policy.
Head 39 Notes:
Head 39 provides for accountability to other Committees of the Oireachtas by the Chief Executive.
Subhead 39(2) provides for the Chief Executive to attend the Committee subject to a written request.
Subhead 39(3) exempts the Chief Executive from attending on matters that are, or may in the future
be, before the Courts or the subject of a Tribunal.
Subheads 39(4 to 8) sets out the procedure for dealing with matters that the Chief Executive believes
that subsection 3 applies to.
Head 40 – Administrative Cooperation on Regulatory Matters
Contents
Provide that (1) The AHB Regulator shall, in so far as is consistent with the proper performance of
its functions, endeavour to secure administrative cooperation between it and
relevant regulators, and for that purpose, the AHB Regulator may enter into one or
more arrangements (whether in the form of a memorandum of understanding or
otherwise) with relevant regulators for the purposes of—
(a) facilitating administrative cooperation between the AHB Regulator and the
relevant regulators in the performance of their respective functions in so far as
they relate to the regulation of AHBs,
(b) avoiding duplication of activities by the AHB Regulator and any relevant
regulator, or
(c) ensuring, as far as practicable, consistency between decisions made or measures
taken by the AHB Regulator and relevant regulators in so far as any part of
those decisions or measures consists of or relates to a determination of any
matters concerning the regulation of AHBs.
(2) Relevant regulators for the purposes of subhead 40(1) shall include –
(a) The Charities Regulator,
(b) The Private Rented Tenancies Board,
(c) The Health and Information Quality Authority, or
(d) Any other relevant regulator.
(3) An arrangement under this section shall not operate to bind the AHB Regulator or
another relevant regulator.
(4) The Minister and any relevant Minister in relation to a relevant regulator
concerned shall each be furnished by one of the parties concerned with a copy of an
arrangement under this section and any variation thereof.
(5) The parties to an arrangement under this section may vary the terms of the
arrangement.
Head 40: Administrative Cooperation on Regulatory Matters - continued
(6) An arrangement under this section shall not operate to require the AHB Regulator
to provide information to any relevant regulator if the disclosure of that information
by the AHB Regulator is prohibited by law.
(7) In this section— “relevant Minister” means, in relation to a relevant regulator, the
Minister of the Government who performs functions in connection with that relevant
regulator;
(8) “relevant regulator” means—
(a) a body, or holder of an office, in whom functions are vested relating to the
regulation of activities or persons for purposes other than the purposes of this
Act (where the body or office is established by or under an enactment and is
prescribed by order of the Minister), or
(b) a body, or holder of an office, in whom functions are vested under the law of a
state (other than the State) relating to the regulation of activities or persons in
that state for any purpose (where the body or office is prescribed by order of the
Minister).
Head 40 Notes:
This head is intended to facilitate inter regulatory cooperation and allows for the drawing up of
arrangements or memorandum of understanding between regulatory agencies in order to ensure that
the overall regulatory approach for AHBs is as streamlined and user-friendly as possible.
The constitution and diverse nature of AHBs will necessarily lead to interaction with other regulatory
bodies such as the Charities Regulator, the Private Residential Tenancies Board, Health Information
and Quality Authority etc. In order to minimise the regulatory burden for AHBs the AHB Regulator
will need to share relevant information with these other regulatory bodies and they will need to be
required to share relevant information with the AHB Regulator. The intention would be that the AHB
Regulator be given primacy in regulating AHBs but must take cognisance of the need to involve
other regulatory bodies as appropriate and to share all relevant information with them.
Head 41: Offences
Contents
To provide that (1) Unless otherwise stated, a person guilty of an offence under this Act shall be liable —
(a) on summary conviction, to a fine not exceeding €5,000 or to imprisonment for a
term not exceeding 12 months or to both, or
(b) on conviction on indictment, to a fine not exceeding €300,000 or to imprisonment
for a term not exceeding 10 years or to both.
(c) Where an offence under this Act is committed by a body corporate and is proved
to have been so committed with the consent or connivance of or to be attributable
to any neglect on the part of any person, being a director, manager, secretary or
other officer of the body corporate, or a person who was purporting to act in such
capacity, that person shall, as well as the body corporate, be guilty of an offence
and shall be liable to be proceeded against and punished as if he or she were guilty
of the first-mentioned offence.
(d) Summary proceedings for an offence under this Act may be brought and
prosecuted by the AHB Regulator.
(e) Where a person is convicted of an offence under this Act the court shall order the
person to pay to the AHB Regulator the costs and expenses, measured by the
court, incurred by the AHB Regulator in relation to the investigation, detection
and prosecution of the offence, unless the court is satisfied that there are special
and substantial reasons for not so doing.
Head 41 Note:
This provision is a standard provision to cover offences.
Head 42: Review
Contents
To provide that -
(1) The AHB Regulator shall carry out a review of the operation of this Act within a period
of three years from the commencement date and to provide advice and recommendations
to the Minister for any amendments or alterations to the Act in relation to the regulation
of AHBs.
Head 42 Note:
This provision will place a duty on the AHB Regulator to review the operation of the Act and
specifies a time period of three years for that review.
Head 43: Repeals
Contents
To provide that -
(1) Section 6 (6) of the Act of 1992 is repealed on the establishment day.
Head 43 Notes:
Section 6 (6) of the Housing (Miscellaneous Provisions) Act 1992 empowers the Minister to grant
approved housing body status to applicant housing associations. This subsection will be repealed as
the power to approve housing body status will be conferred on the AHB Regulator by virtue of Head
30.
Head 44: Amendment to the Residential Tenancies Act 2004
Contents
To provide that (1) The Residential Tenancies Act 2004 is amended by inserting the following section after
section 94:
“94A._ Where a dispute is referred to the Board for resolution, and a registered
Approved Housing Body is a party to the dispute, the Board shall notify in writing the
AHB Regulator that the dispute has been referred to it.”.
Head 44 Note:
The purpose of this amendment to the Residential Tenancies Act 2004 is to ensure that the AHB
Regulator is informed when a tenancy dispute in relation to a registered AHB has been referred to the
PRTB. The intention is that this information will be regarded by the AHB Regulator as a possible
event which may trigger investigations by the AHB Regulator into governance and financial matters
of the registered AHB.
Head 45: Amendment of the Housing (Miscellaneous Provisions) Act 2009
Contents
To provide that (1) The Housing (Miscellaneous Provisions) Act 2009 is amended by inserting the
following section after section 18B:
“18C._ Where an Improvement Notice under Section 18A or a Prohibition Notice under
Section 18B has been issued to a registered Approved Housing Body, the Local
Authority shall notify in writing to the AHB Regulator that the relevant notification has
been issued.”.
Head 45 Note:
The purpose of this amendment to the Housing (Miscellaneous Provisions) Act 2009 is to ensure that
the AHB Regulator is informed when an Improvement Notice or a Prohibition Notice has been served
on a registered AHB. The intention is that this information will be regarded by the AHB Regulator as
a possible event which may trigger investigations by the AHB Regulator into governance and
financial matters of the registered AHB.
SCHEDULE 1
AHB Regulatory Board
1.
(1) The AHB Regulatory Board shall be a body corporate with perpetual succession and an official
seal and shall have power to sue, and may be sued, in its corporate name, and shall, with the
consent of the Minister and the Minister for Public Expenditure and Reform have power to
acquire, hold and dispose of land or an interest in land, and shall have power to acquire, hold and
dispose of any other property.
(2) The seal of the Board shall be authenticated by—
(a) the signatures of 2 members of the Board, or
(b) the signatures of both a member of the Board and a member of the staff of the Board,
(3) Judicial notice shall be taken of the seal of the Board and any document purporting to be an
instrument made by, and to be sealed with the seal of, the Board shall, unless the contrary is
shown, be received in evidence and be deemed to be such instrument without further proof.
2.
(1)The Board shall consist of not less than 5 and not greater than 11 members.
(2) The members of the Board shall be appointed by the Minister, with the approval of the
Government.
(3) The chairperson of the Board shall be appointed by the Minister from among the members of
the Board.
(4) The Minister shall, in so far as is practicable, endeavour to ensure that among the members of
the Board there is an equitable balance between men and women.
(5) The Minister shall, in appointing the members of the Board, ensure that among those members
there are persons who have knowledge of, and expertise in relation to—
(a) the law relating to housing provision ,
(b) governance and financial management of not-for-profit organisations.
(6) A member of the Board shall hold office for such period, not exceeding 5 years from the date
of his or her appointment, as the Minister shall determine.
(7) Subject to subparagraph (8), a member of the Board whose term of office expires by the efflux
of time shall be eligible for reappointment to the Board.
(8) A person who is reappointed to the Board in accordance with subparagraph (7) shall not hold
office for periods the aggregate of which exceeds 10 years.
3.
(1) A member of the Board may resign from office by giving notice in writing to the Minister of
his or her resignation and the resignation shall take effect on the day on which the Minister
receives the notice.
(2) The Minister may at any time remove from office a member of the Board if, in the Minister’s
opinion, the member has become incapable through ill-health of performing his or her functions, or
has committed stated misbehaviour, or his or her removal appears to the Minister to be necessary
for the effective performance by the Board of its functions.
(3) A member of the Board shall cease to be qualified for office and shall cease to hold office if he
or she—
(a) is adjudicated bankrupt,
(b) makes a composition or arrangement with creditors,
(c) is sentenced by a court of competent jurisdiction to a term of imprisonment,
(d) is convicted of any indictable offence in relation to a company,
(e) is convicted of any indictable offence in relation to a charitable organisation or charitable
trust,
(f) is convicted of an offence involving fraud or dishonesty, whether in connection with a
company or not, or
(g) is the subject of an order under section 160 of the Companies Act 1990.
(4) A member of the Board shall, subject to the provisions of this Act, hold office upon such terms
and conditions (including terms and conditions relating to remuneration and allowances) as may be
determined by the Minister, with the consent of the Minister for Public Expenditure and Reform.
5.
(1) If a member of the Board dies, resigns, ceases to be qualified for office and ceases to hold
office or is removed from office, the Minister may appoint a person to be a member of the Board
to fill the casual vacancy so occasioned in the same manner as the member of the Board who
occasioned the casual vacancy was appointed.
(2) A person appointed to be a member of the Board pursuant to subparagraph (1) shall hold office
for that period of the term of office of the member who occasioned the casual vacancy concerned
that remains unexpired at the date of his or her appointment and shall, subject to paragraph 8, be
eligible for reappointment as a member of the Board on the expiry of the said period.
(3)The chairperson and ordinary members of the Board shall be paid by the Board such
remuneration and such allowances for expenses as the Minister may, with the approval of the
Minister for Public Expenditure and Reform, determine.
6.
(1) The Board shall hold such and so many meetings as may be necessary for the due fulfilment of
its functions.
(2) The Minister shall fix the date, time and place of the first meeting of the Board.
(3) At a meeting of the Board—
(a) the chairperson of the Board shall, if present, be the chairperson of the meeting, or
(b) if and so long as the chairperson of the Board is not present or if that office is vacant, the
other members of the Board who are present shall choose one of their number to be
chairperson of the meeting.
(4) Every question at a meeting of the Board shall be determined by a majority of the votes of the
members of the Board present and voting on the question, and, in the case of an equal division of
votes, the chairperson shall have a second or casting vote.
(5) Subject to subparagraph (7), the Board may act notwithstanding one or more vacancies among
its members.
(6) Subject to the provisions of this Act, the Board shall regulate its procedure by rules or
otherwise.
(7) The quorum for a meeting of the Board shall, unless the Minister otherwise directs, be 5.
7.
(1) The Board may establish committees, consisting in whole or in part of persons who are
members of the Board, to—
(a) assist and advise it in relation to the performance of any or all of its functions, and
(b) perform such functions of the Board as may stand delegated to them under paragraph 7.
(2) In appointing members of a committee established under this paragraph, the Board shall—
(a)have regard to the range of qualifications and experience necessary for the proper and
effective discharge of the functions of the committee,
(b)have regard to the desirability of there being such balance between men and women on the
committee as is appropriate.
(3) There may be paid by the Board to members of a committee established under this paragraph
such allowances for expenses (if any) incurred by them as Board may, with the consent of the
Minister and the Minister for Public Expenditure and Reform, determine.
(4) A member of a committee established under this paragraph may be removed from office at any
time by the Board.
(5) The acts of a committee shall be subject to confirmation by the Board, unless the Board
otherwise determines.
(6) The Board may determine the terms of reference and regulate the procedure of a committee
established under this paragraph.
(7) The Board may appoint a person to be chairperson of a committee established under this
paragraph.
(8) A committee shall provide the Board with such information as the Board may from time to
time require, in respect of its activities and operations, for the purposes of the performance of the
functions of the Board.
(9) The Board may at any time dissolve a committee established under this paragraph.
8.
The Board may, with the consent of the Minister, delegate such one or more of its functions as it
considers appropriate to a committee established under paragraph 6.
9.
(1) Where a member of the Board, a member of a committee established under paragraph 6 or the
chief executive is—
(a) nominated as a member of Seanad Éireann,
(b) elected as a member of either House of the Oireachtas or to be a representative in the
European Parliament, or
(c) regarded pursuant to Part XIII of the Second Schedule to the European Parliament
Elections Act 1997 as having been elected to that Parliament,
he or she shall thereupon cease to be a member of the Board, the committee concerned or chief
executive, as the case may be.
(2) Where a member of the staff of the Board is—
(a) nominated as a member of Seanad Éireann,
(b) elected as a member of either House of the Oireachtas or to be a representative in the
European Parliament, or
(c) regarded pursuant to the said Part XIII as having been elected to that Parliament,
he or she shall thereupon stand seconded from employment by the Board and shall not be paid by,
or be entitled to receive from, the Board any remuneration or allowances in respect of the period
commencing on such nomination or election, or when he or she is so regarded as having been so
elected (as the case may be), and ending when such person ceases to be a member of either such
House, a representative in such Parliament.
(3) A person who is for the time being entitled under the Standing Orders of either House of the
Oireachtas to sit therein or who is a representative in the European Parliament shall, while he or
she is so entitled or is such a representative, be disqualified for being a member of the Board, a
committee established under paragraph 6, the chief executive or a member of the staff of the
Board.
(4) A period mentioned in subparagraph (2) shall not, for the purposes of any superannuation
benefit, be reckoned as service with the Board.
10. (1) Where at a meeting of the Board any of the following matters arise, namely –
(a) an arrangement to which the Board or a proposed such arrangement, or
(b) a contract or other agreement with the Board a proposed such contract or other agreement
then, any member of the Board present at the meeting who otherwise in his or her capacity as such
member has a material interest in the matter shall –
(i) at the meeting disclose to the Board the fact of such interest and the nature thereof,
(ii) neither influence nor seek to influence a decision to be made in relation to the
matter,
(iii) absent himself or herself from the meeting or that part of the meeting during
which the matter is being discussed,
(iv) take no part in any deliberation of the Board relating to the matter, and
(v) not vote on a decision relating to the matter.
(2) Where a material interest is disclosed pursuant to this paragraph, the disclosure shall be
recorded in the minutes of the meeting concerned and, for so long as the matter to which the
disclosure relates is being dealt with by the meeting, the member by whom the disclosure is made
shall not be counted in the quorum for the meeting.
(3) Where at a meeting of the Board a question arises as to whether or not a course of conduct, if
pursued by a member of the Board, would constitute a failure by him or her to comply with the
requirements of subparagraph (1), the question may, subject to subparagraph (4), be determined
by the chairperson of the meeting, whose decision shall be final, and where such a question is so
determined, particulars of the determination shall be recorded in the minutes of the meeting.
(4) Where, at a meeting of the Board, the chairperson of the meeting is the member in respect of
whom a question to which subparagraph (3) applies falls to be determined, then the other
members of the Board attending the meeting shall choose one of their number to be chairperson of
the meeting for the purpose of determining the question concerned.
(5) Where the Minister is satisfied that a member of the Board has contravened subparagraph (1),
the Minister may, if he or she thinks fit, remove that member from office and, in case a person is
removed from office pursuant to this subparagraph, he or she shall thenceforth be disqualified for
membership of the Board.
11. (1)Where a member of the staff of the Board has a material interest, otherwise than in his or her
capacity as such a member, in any contract, agreement or arrangement, or proposed contract,
agreement or arrangement, to which the Board is a party, that person shall –
(a) disclose to the Board his or her interest and the nature thereof,
(b) take no part in the negotiation of the contract, agreement or arrangement or in any
deliberation by the Board or members of the staff of the Board in relation thereto, or
(c) neither influence nor seek to influence a decision to be made in the matter nor make any
recommendation in relation to the contract, agreement or arrangement.
(2) Subparagraph (1) shall not apply to contracts or proposed contracts of employment of
members of the staff of the Board with the Board.
(3) Where a person contravenes this paragraph the Board may make such alterations to the
person’s terms and conditions of employment as it considers appropriate or terminate the person’s
contract of employment.
12. (1) A person shall not disclose confidential information obtained by him or her while performing
functions as –
(a) a member or member of the staff of, or an adviser or consultant to, the Board, or a member
of the staff of such adviser or consultant, or
(b) a member of a committee established under paragraph 6,
unless he or she is duly authorised by the Board to so do.
(2) A person who contravenes subparagraph (1) shall be guilty of an offence.
(3) In this paragraph “confidential information” includes –
(a) information that is expressed by the Board to be confidential either as regards particular
information or as regards information of a particular class or description, and
(b) proposals of a commercial nature or tenders submitted to the Board by contractors,
consultants or any other person.