EXPLANATORY NOTE
(This note is not part of the Order)
This Order brings into force various provisions of the Housing (Scotland) Act 2010 (“the 2010 Act”).
Article 2(1) and Schedule 1 appoint 1st April 2012 for the coming into force of those provisions of Parts 1 to 12, 17 and schedules 1 and 2 of the 2010 Act which are not already in force. Parts 1 and 2 confer powers and duties on the Scottish Housing Regulator and provide for the establishment and maintenance of a register of social landlords. Parts 3-12 make provision relating to the performance of social landlords and regulatory intervention in their activities, including restructuring and disposal of land. Part 17 makes supplementary provision.
Schedule 1 to the 2010 Act provides for the transfer of staff and property from the Executive Agency of the Scottish Ministers known as the Scottish Housing Regulator to a body corporate of the same name. Schedule 2 to that Act makes various amendments and repeals as a consequence of the provisions of the Act commenced in this Order. These include amendment and repeal of the Scottish Ministers’ powers and duties to regulate social housing in the Housing (Scotland) Act 2001 (asp 10) (“the 2001 Act”).
The provisions specified in Schedule 1 to this Order are commenced for all purposes, with the exception of section 110 of the 2010 Act. Section 110 requires a registered social landlord proposing to make a disposal of land in certain circumstances to consult the tenants of any houses included in the proposed disposal. Section 110 is commenced on 1st April 2012 only for the purpose of applying to a proposed disposal of land other than a disposal by way of granting security over the land or any interest in it.
Article 3 and Schedule 2 to this Order make transitional and savings provisions in connection with the provisions of the 2010 Act commenced in this Order.
Paragraphs 2 to 4 of Schedule 2 provide for any undetermined applications for registration as a social landlord (or for removal from the register) made under the 2001 Act before the appointed day to be determined under the 2010 Act. The appointed day is 1st April 2012. These paragraphs also provide for the continuation of any appeal against a decision of the Scottish Ministers relating to registration or removal under the 2001 Act.
Paragraph 5 saves certain sections of the 2001 Act in relation to inspections carried out but not completed before the appointed day, and transfers the functions of the Scottish Ministers under those sections to the Regulator. Paragraph 6 provides for an inquiry or audit carried out, or being carried out, under the 2001 Act before the appointed day to be treated as inquiries made under the 2010 Act. Paragraph 7 provides for information or documents required by the Scottish Ministers under the 2001 Act to be provided to the Regulator.
Paragraphs 8 to 14 make provision for certain regulatory interventions by the Scottish Ministers under the 2001 Act before the appointed day to be treated as having been made by the Regulator under the 2010 Act, and, where applicable, to be continued or concluded under that Act. By virtue of paragraphs 9(1), 11(3) and 12(3), any appeal against a decision of the Scottish Ministers to remove or suspend an officer of a registered social landlord is continued under the 2001 Act, with any functions of the Scottish Ministers relating to such an appeal being transferred to the Regulator. Paragraph 15 saves the effect of any direction given by the Scottish Ministers before the appointed day to transfer a registered social landlord’s land under paragraph 19 of schedule 7 to the 2001 Act. The Scottish Ministers’ functions in relation to such a direction are transferred to the Regulator.
Paragraph 16 saves the 2001 Act requirements on registered social landlord accounts and audit in relation to any accounting period which begins before the appointed day. Paragraph 17 provides that the code of good practice published by the Scottish Ministers under section 80 of the 2001 Act is to continue in effect until 30th September 2012.
Paragraph 18 makes transitional provision relating to the insolvency of a registered social landlord. Sub-paragraph (a) provides for a moratorium in place under schedule 8 of the 2001 Act before the appointed day to be treated as a moratorium under the 2010 Act. By virtue of sub-paragraphs (c) to (k), steps taken by the Scottish Ministers under schedule 8 of the 2001 Act before the appointed day, including agreement of proposals as to the future ownership and management of a registered social landlord’s land and the appointment of a manager to implement agreed proposals, are to be treated as steps taken by the Regulator under the 2010 Act. Sub‑paragraph (m) provides for paragraph 12 of schedule 8 to the 2001 Act to continue to have effect in respect of any application to the Court of Session made but not determined before the appointed day. The functions of the Scottish Ministers in relation to such an application are transferred to the Regulator.
Paragraph 19 has the effect that where a registered social landlord has notified, or received the Scottish Ministers’ consent to, a change of its name, office or constitution under the 2001 Act, it is not required to notify or obtain the consent of the Regulator under the equivalent provisions of the 2010 Act.
Paragraph 9 of schedule 7 to the 2001 Act requires the Scottish Ministers’ consent to be obtained to the restructuring, winding up or dissolution of a registered social landlord which is an industrial and provident society. Paragraph 20 of Schedule 2 saves that paragraph in cases where a registered social landlord has, before the appointed day, applied for consent or taken steps to consult tenants for the purpose of obtaining consent, provided that the Regulator is satisfied by 1st October 2012 that tenant consultation has taken place. Paragraph 21 of Schedule 2 makes equivalent provision in respect of paragraph 10 of schedule 7 to the 2001 Act, which provides for consent to be obtained to the restructuring or winding up of a registered social landlord which is a registered company.
Paragraph 22 provides for the continuation by the Regulator of any petition for winding up presented by the Scottish Ministers under paragraph 11 of schedule 7 to the 2001 Act before the appointed day. Paragraph 23 provides for any direction given by the Scottish Ministers before the appointed day to transfer a registered social landlord’s land on the dissolution or winding up of the landlord to be treated as a direction given by the Regulator under the 2010 Act.
Paragraph 24 saves the effect of any consent given under section 66(1) of the 2001 Act before the appointed day by the Scottish Ministers to the disposal of land by a registered social landlord. Paragraph 25 provides for any undetermined applications for such consent made before the appointed day to be determined under the equivalent 2010 Act provisions, other than where schedule 9 to the 2001 Act would have applied to the proposed disposal (that is, where the proposed disposal would result in a change in landlord for tenants of the registered social landlord proposing to make the disposal). Paragraph 26 provides that in cases where schedule 9 would have applied, where an RSL has begun tenant consultation before the appointed day or given the Scottish Ministers notice before the appointed day that it proposes to make the disposal, the relevant provisions of the 2001 Act continue to apply, provided that the registered social landlord certifies before 1st October 2012 that the requirements as to tenant consultation have been carried out.
The 2010 Act received Royal Assent on 9th December 2010. Sections 161, 163 and 165 to 167 came into force on Royal Assent.
On the coming into force of this Order, the following provisions of the 2010 Act will remain uncommenced:
a
section 110 (partially) (tenant consultation: other disposals);
b
sections 145 to 147 (duties to collect and publish information);
c
section 153 (partially) (tenant protection: repossession orders);
d
section 155 (partially) (Scottish secure tenancy: rent arrears pre-action requirements); and
e
section 158 (partially) (housing support).