Commentary on provisions of Act Monitoring and enforcement Section 28: Surveys
Section 28 amends sections 199 and 200 of the HRA 2008 and inserts new sections 199A and 199B. Section 199 gives the regulator power to arrange for a survey of the condition of premises where it suspects that a registered provider is failing to maintain the premises in accordance with standards under section 193. This section reduces the minimum notice period the regulator must give to the registered provider and occupier/s before an authorised person can enter to conduct such a survey. It also gives the regulator power to apply for a warrant to allow an authorised person to gain entry in certain cases. These changes give the regulator the power to arrange for surveys of the condition of properties more quickly, by reducing the notice period which must be given, and enabling a warrant to be sought to gain entry in cases where this is reasonably required. This ensures a survey can take place promptly.
	Amendments to section 199 remove subsections (4), (5) and (6). These provisions gave a person authorised by the regulator power to enter a property so they can carry out a survey and set out the rules about notification of registered providers by an authorised person and of occupiers of the relevant premises by the registered provider before a survey takes place. They are replaced by the new section 199A. There are consequential amendments to the definition of ‘authorised person’ in subsection (3). Subsection (9) is added, to enable the regulator to pay people that are not its staff members to carry out a survey.
	New section 199A provides a power to enter premises to carry out a survey without a warrant. The provision allows an authorised person to enter premises at any reasonable time, providing they give the registered provider and the occupier/s (if any) at least 48 hours’ notice. Section 199A(3) provides that the provider and the occupier can choose to waive the requirement to give notice. This would enable them to let the survey take place without receiving notice or before the notice period has elapsed. Subsection (4) provides that the notice can state that an authorised person would propose to apply for a warrant to enter if entry is refused. Subsection (5) allows for a notice under subsection (2)(b) to be provided to occupier/s by fixing it to some conspicuous part of the premises. Subsection (6) states that the authorised person must show a copy of the authorisation from the regulator on request from an occupier. Subsection (7) allows the authorised person to be accompanied by any other people they think will be needed for them to complete the survey properly, or to take with them any equipment or materials that they think are necessary for the survey. Subsection (8) allows materials or equipment to be left in a place on the premises until the survey is completed, provided that it does not significantly impair the ability of an occupier to use the premises (or, where relevant, common parts of a building) or it is necessary to leave the equipment or materials on the premises and it is not possible to leave them in a place that does not significantly impair the ability of an occupier to use the premises (or common parts).
	Section 199B allows an authorised person to apply for a warrant from a justice of the peace to enter a property to conduct a survey. Before a warrant may be issued a justice must be satisfied that entry is reasonably required for the purpose of carrying out a survey, based on sworn information provided in writing by an authorised person. Subsection (2) provides that the justice must also be satisfied that the authorised person has tried to enter the premises but that they have been refused entry, that the premises are currently unoccupied, or the occupier is temporarily absent, or that there are reasonable grounds to believe entry will not be possible without a warrant. Subsection (3) provides that a warrant allows for entry at any reasonable time and using reasonable force if necessary. Subsection (4) provides that a warrant allows the authorised person to take with them any equipment or materials that they think are necessary for the survey. Subsection (5) allows any of these materials or equipment to be left in a place on the premises until the survey is completed, provided that it does not significantly impair the ability of an occupier to use the premises (or, where relevant, common parts of a building) or it is necessary to leave the equipment or materials on the premises and it is not possible to leave them in a place that does not significantly impair the ability of an occupier to use the premises (or common parts). Subsection (7) provides that a warrant may allow the authorised person to be accompanied by any other people they think will be needed for them to complete the survey properly. Subsection (8) clarifies that ‘accompanying persons’ have the same powers as the authorised person but that they must be in the company of the authorised person at the time and be supervised by them. Subsection (9) states that the authorised person must show a copy of the warrant and authorisation from the regulator to anybody who asks to see it. Subsection (10) states that the warrant is in force until the survey is completed. Subsection (11) requires the authorised person to leave premises that were unoccupied (or had a temporarily absent occupier) at the time of entry as effectively secured against trespassers as they were found upon entry.
	Subsection (1) of section 200, which requires an authorised person to give a copy of the authorisation from the regulator allowing them to carry out a survey to an occupier, is repealed; this is now covered by section 199A(6) and 199B(9).
	Subsection (3) of section 200 is repealed in consequence of the removal of the requirement on providers to give notice to occupiers ahead of a survey taking place. Consequential amendments are also made to the offence in subsection (4). Subsection (4A) is also added to make it an offence for a person to obstruct an authorised person exercising a power conferred by a warrant under section 199B or to obstruct an authorised person in exercising a power under section 199 where the authorised person has entered the premises to carry out a survey with a warrant under section 199B.