Commentary on provisions of Act Monitoring and enforcement Section 31: Performance improvement plans
Section 31 will add sections 218A, 218B, 218C and 218D to the HRA 2008 enabling the regulator to require a registered provider of social housing to prepare and implement a performance improvement plan (‘PIP’). This enforcement measure was first promised in the Social Housing White Paper.
	This power will allow the regulator to hold a registered provider to account in relation to how, and by when, it proposes to address an issue that has been identified. A PIP must be published so it will also allow tenants to be aware of the actions their landlord is required to carry out and when, so they can hold their landlord to account. As well as increasing the tools available to the regulator and underpinning the new consumer regulation by allowing the regulator to intervene proactively in cases where providers do not meet standards, this change will promote improved landlord performance and service delivery for the benefit of tenants.
	Section 218A(1) sets out the grounds on which the regulator can give a provider a PIP notice requiring the provider to prepare and submit a PIP. A PIP notice may be given if the regulator is satisfied as to any one of the below grounds:
The provider has failed to meet a standard under section 193, 194, 194A, or 194C. These sections refer to consumer standards, economic standards, and new standards relating to competence and conduct, and information and transparency, created by the Act.
There is a risk the provider could fail to meet a standard under section 193, 194 194A or 194C unless action is taken by the provider or the regulator.
The provider has failed to comply with directions or a request under the new section 198C, which is also added by the Act, relating to collecting and publishing performance information.
The interests of the registered provider’s tenants of social housing require protection.
The registered provider has given an undertaking under section 125 and failed to comply with it. A voluntary undertaking is a commitment made to the regulator to carry out specified actions.
	Section 218A(2) sets out requirements for the PIP notice. The PIP notice must specify on which of the grounds (listed above) the PIP is given; identify the issues which led the regulator to be satisfied of those grounds; require the provider to prepare and submit to the regulator a PIP setting out the action the provider will take to address the issues identified; specify the date by which the PIP must be submitted to the regulator; require the provider to publish a PIP if it is approved by the regulator and specify the manner of such publication; and explain the effect of subsections (3) and (4) and sections 218B to 218D meaning it must explain the wider effects of the PIP, as set out below.  Subsection (3) provides that the regulator may withdraw the PIP by notice to the provider. Subsection (4) provides that if a provider fails to comply with a PIP notice, the regulator must consider exercising another enforcement power under Chapter 6 or 7 of the HRA 2008.
	Section 218B sets out duties for the regulator and provider relating to the PIP. The regulator is required to either approve a PIP submitted or reject it and provide reasons for doing so. If approved the provider is required to implement the PIP. If a PIP is not approved by the regulator, the provider is deemed to have failed to comply with the PIP notice. Following a rejection, the regulator must consider exercising another enforcement power. Subsection 218B(4) provides that if a tenant requests a copy of the approved PIP in writing, the provider must provide a copy to the tenant as soon as practicable.
	Section 218C relates to the cancellation of a PIP. The regulator can, by notice to the provider, cancel a PIP which it has approved. This could, for example, be because the initial concerns which led to the PIP notice being issued are no longer held or have been adequately addressed. If a PIP is cancelled, the provider’s duties to publish a PIP which has been approved, to implement the PIP, and to provide a copy of the PIP on request from a tenant, no longer apply. However, if the provider breached one of these duties prior to the plan being cancelled, this cancellation does not impact action being taken in relation to this breach.
	Section 218D provides that providers can appeal to the High Court against a decision by the regulator to issue a PIP notice within 28 days of the provider receiving the notice. The requirement for the PIP to be prepared and submitted is suspended during the appeal period (which is defined as the period during which an appeal could be brought, or where an appeal is brought the period pending the final determination or withdrawal of the appeal). However, if a PIP has already been approved, an appeal does not suspend the provider’s duties to publish, implement, or provide copies of the PIP.
	Section 31 also amends various enforcement provisions of the HRA 2008:
Failure to comply with a PIP notice and failure to implement a PIP which has been approved by the regulator are added as grounds for the regulator giving a provider an enforcement notice under section 220.
Failure to comply with a PIP notice, and failure to provide a copy of a PIP to a tenant who requests one, are added as grounds for the regulator to impose a financial penalty on the provider under section 227 and to award compensation to a person who has suffered as a result of that failure, e.g. a tenant, under section 237.
Failure to comply with a PIP notice is added as a ground for the regulator to require a provider to invite persons to apply to undertake management functions of the provider and select from the applicants to make an appointment under section 247, and to appoint a manager to a provider under section 251.
Failure to comply with a PIP notice is added as a ground for the regulator to appoint advisers to a local authority or to require the authority to appoint advisers under section 252A.