As of 1 April 2015, Registered Providers are subject to a new General Consent. You will be forgiven for not having noticed as the publicity surrounding its release has been tepid at best.
However, the prior General Consent issued in 2010 can no longer be relied upon in respect of disposals taking effect (ie completing) after 31 March 2015. Any disposals caught by section 172 of the Housing and Regeneration Act 2008, section 133 of the Housing Act 1988 and section 171D of the Housing Act 1985 which are not authorised by the General Consent 2015 will need to be referred to the Regulator for a bespoke consent.
Of course, the forms for applying for consents and recording disposals have also changed. RPCON forms are out and DC forms (short for 'Disposal Consent') are in. Please click here https://www.gov.uk/how-registered-providers-get-statutory-consent-from-the-regulator to take you to the gov.uk website page to find the forms. As a reminder, you are required to complete a DC5 (yes, this was previously called a RPCON5) each and every time you make a disposal in reliance on the General Consent 2015.
The Regulator’s 80 page “Disposing of Land” guidance document has also been updated. A further note has been published summarising the changes between the 2010 and 2015 versions. This document however is not particularly helpful – it mostly just advises Registered Providers that they need to familiarise themselves with the new consent as there are too many changes to summarise them individually. This is probably more because there are no earth shattering changes. Yes, the number of categories of consent has reduced from 39 to 34 and there are tweaks here and there (particularly around the grant of land options). Much of the terminology has changed – for example “vacant” has become “unoccupied” and the schedule of defined terms at the back of the document has been overhauled. Largely though the nature of the permitted disposals remain as they were in the 2010 version.
The more notable changes relate to Category 6 which apply to charges given over social housing dwellings to private finance providers. If your organisation was previously authorised to rely on Category 6 of the 2010 Consent when granting charges, it probably is now authorised under the new Consent. However, please be aware that the Regulator issued new authorisation letters to each Chief Executive on, or around, 31 March. The undertakings given to the Regulator and the confirmations to be given to lenders before entering into a charge have changed. Please therefore ensure you are compliant with the new rules for any forthcoming charges. Officer’s certificates and other confirmations will need to be updated and lenders are likely to want to see the new authorisation letter. Replacements can be ordered from the HCA’s consents team if necessary.
Registered Providers are required to undertake to the Regulator that they will not on-lend other than to group members (the previous distinction between RP and non-RP group members has been removed). However, where the proposed on-lending is to a group member that is either a profit-making RP or a non-RP, you must have first obtained independent advice which confirms the on-lending arrangement is on reasonable commercial terms for parties at arm’s length.
Other points to note are that the General Consent 2015 cannot be relied upon in connection with lease finance (ie where the finance provided is repaid either in full or partially by the RP taking a lease of property), security offered on index-linked finance or on credit facilities provided by local authorities.
As always, if you are contemplating a disposal, the best advice is to check that the terms of the disposal fall within the parameters of the current General Consent. If you have any concerns, we are happy to assist. If you can’t rely on the General Consent, you will need to apply for a bespoke consent which will take a few weeks to be processed by the Regulator. However, provided the disposal makes sense commercially and complies with the regulatory framework, there shouldn’t be a problem.