Structure of the Act Part 8 – Registered Social Landlords: Organisational Change
108.Part 8 concerns changes to a registered social landlord’s name, office, or constitution. It replaces the previous requirements in Part 2 of Schedule 7 to the Housing (Scotland) Act 2001 dealing with the constitution, change of rules, amalgamation and dissolution of registered social landlords.
109.Sections 92 to 95 replace paragraphs 7 and 8 of Part 2 of schedule 7 to the 2001 Act. Section 92 requires RSLs to notify the regulator of a change of name or a change in registered office within 28 days of the change being made.
110.Under section 93, registered social landlords must obtain the regulator’s consent for any other change to their constitution - for example changes to their rules, memorandum or articles. If the RSL is a registered society and obtains consent under section 93 to amend its rules, section 94 requires the RSL to send a copy of the consent along with the copies of the amendment sent to the Financial Services Authority under section 10(1) of the Co-operative and Community Benefit Societies and Credit Unions Act 1965. Section 95 requires registered company RSLs to send a copy of the regulator’s consent to the registrar of companies, along with the copy resolution sent in accordance with the Companies Act 2006.
111.The provisions in sections 96 to 106 replace those in paragraphs 9 to 12 of Part 2 of schedule 7 to the 2001 Act that relate to arrangements for restructuring, winding-up or dissolution of a registered social landlord.
112.Sections 96 to 99 apply to registered societies whose inclusion in the register of social landlords has been recorded by the Financial Services Authority. Under section 96, the regulator cannot give consent for the purposes of these sections unless it is satisfied the society has consulted its tenants about the matter requiring consent. This condition covers cases where the special consent, consultation and ballot procedures in Chapter 2 of Part 10 do not apply. The Financial Services Authority can only register resolutions for the restructuring (section 97), voluntary winding up (section 98) or dissolution (section 99) of a society if the regulator consents to the resolution and a copy of the consent accompanies any documents required to be sent to the Financial Services Authority.
113.Sections 100 to 104 apply to RSLs that are registered companies. Section 100 provides that the regulator cannot give consent for the purposes of these sections unless it is satisfied the company has consulted its tenants on the matter requiring consent. This condition covers cases where the special consent, consultation and ballot procedures in Chapter 2 of Part 10 do not apply. Under section 101, a court order under sections 899 (court sanction for compromise or arrangement) or 900 (powers of court to facilitate reconstruction or amalgamation) of the Companies Act 2006 can only be made if the regulator consents, and a copy of the consent accompanies the copy of the order required to be sent to the registrar of companies. If the whole or part of the company is transferred to another company under section 900 of the Companies Act 2006, the other company will be included in the register of social landlords.
114.Under section 102 a special resolution by a company under section 53 of the Co-operative and Community Benefit Societies and Credit Unions Act 1965 has effect only if the regulator consents to the resolution before it is passed. Again, a copy of the consent must accompany the resolution required to be sent to the registrar of companies. The new registered society created in pursuance of that resolution is to be included in the register of social landlords.
115.Under section 103, the regulator must consent to a voluntary arrangement in relation to a company under section 5 of the Insolvency Act 1986, before it will take effect. Under section 104 of this Act, the regulator must consent to a special resolution being passed under the Insolvency Act 1986 for the voluntary winding up of the company, and a copy of the consent must be sent to the registrar of companies, for it to be valid.
116.Section 105 applies to RSLs that are registered societies or registered companies. Under this section, the regulator may present a petition for the winding up of the registered social landlord under the Insolvency Act 1986 on the ground that the RSL is failing to properly carry out its objects or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986. Section 105(2)(c) introduces a third ground, in addition to those previously available under Part 2, Schedule 7 of the Housing Scotland Act 2001, that the regulator has directed the RSL under section 67 of this Act to transfer all its assets to another registered social landlord.
117.Section 106 applies to an RSL that is also a registered society which has been dissolved in accordance with section 55 of the Co-operative and Community Benefit Societies and Credit Unions Act 1965, or a registered company which has been wound up under the Insolvency Act 1986. Under this section the regulator can direct that any surplus assets, available after the RSL’s liabilities have been discharged, can be transferred to another registered social landlord. The regulator must consult the tenants of the houses to be included in such a transfer and have regard to their views before making such a direction. The regulator may also discharge any liability of the RSL to ensure that assets, which would otherwise need to be sold, can be transferred to another registered social landlord. The regulator may only direct the transfer of assets from a registered social landlord which is a charity to another charity which has the same, or similar, charitable purposes (under section 7(2) of the Charities and Trustee Investment (Scotland) Act 2005). Before directing a transfer from a charitable RSL, the regulator must consult the Office of the Scottish Charity Regulator. And, under section 106 (6), the SHR must consult the Office of the Scottish Charity Regulator before directing a transfer of assets acquired by a non-charitable RSL at a time when it was a registered charity. These provisions ensure that charitable assets continue to be used only for charitable purposes, as required by the Charities and Trustee Investment (Scotland) Act 2005.