text:
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Housing Benefit (Local Housing Allowance, Miscellaneous and Consequential) Amendment Regulations 2007.
2
This regulation and, subject to paragraph (4) (which relates to non-local housing allowance cases), regulations 2 to 6, shall come into force on 7th April 2008.
3
This paragraph applies to a case where no reference was made to a maximum rent (standard local rate) in determining the amount of the eligible rent which applied immediately before 7th April 2008 and in this paragraph —
“eligible rent” shall be construed in accordance with —
regulations 12 or 12A of the Housing Benefit Regulations 2006 or the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 as in force immediately before 7th April 2008; or
in a case to which paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 applies, regulations 12 and 13 of the Housing Benefit Regulations 2006 or the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 as set out in paragraph 5 of that Schedule as in force immediately before 7th April 2007.
“maximum rent (standard local rate)” means a maximum rent (standard local rate) determined in accordance with regulation 13A of the Housing Benefit Regulations 2006 or the Housing Benefit (persons who have attained the qualifying age for state pension credit) Regulations 2006 as in force immediately before 7th April 2008.
4
In a case to which paragraph (3) applies, these Regulations shall come into force on the day when, on or after 7th April 2008, the first of the following sub-paragraphs applies —
a
a relevant authority is required to apply to a rent officer by virtue of regulation 14 of the Housing Benefit Regulations or the Housing Benefit (State Pension Credit) Regulations ;
b
sub-paragraph (a) would apply but for the case falling within regulation 14(4)(a) of, or regulations 14(4)(b) of and paragraph 2 of Schedule 2 to, the Housing Benefit Regulations or the Housing Benefit (State Pension Credit) Regulations (no application to rent officer required as an existing rent officer determination may be used);
c
a relevant authority is required to determine an eligible rent in accordance with regulation 12(3)(b) of the Housing Benefit Regulations or the Housing Benefit (State Pension Credit) Regulations; or
d
a relevant authority is required to determine an eligible rent in accordance with regulation 12(3) of the Housing Benefit Regulations 2006 or regulation 12(3) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 as set out in paragraph 5 of Schedule 3 to the Consequential Provisions Regulations ,
and in this paragraph “relevant authority” means an authority administering housing benefit.
5
Where paragraph (4) does not apply before 6th April 2009, these Regulations shall come into force on that date.
6
In paragraph (4) of this regulation —
“the Housing Benefit Regulations” means the Housing Benefit Regulations 2006 as in force immediately before the coming into force of regulations 4 to 19 of the Housing Benefit (Local Housing Allowance and Information Sharing) Amendment Regulations 2007 in that case;
“the Housing Benefit (State Pension Credit) Regulations” means the Housing Benefit (persons who have attained the qualifying age for state pension credit) Regulations 2006 as in force immediately before the coming into force of regulations 4 to 19 of the Housing Benefit (State Pension Credit) (Local Housing Allowance and Information Sharing) Amendment Regulations 2007 in that case;
“the Consequential Provisions Regulations” means the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 as in force immediately before the coming into force of regulations 2 to 6 of these regulations in that case.
Amendment of the Social Security (Claims and Payments) Regulations 1987
2
Schedule 9 to the Social Security (Claims and Payments) Regulation 1987 shall be amended as follows —
a
in paragraph 4A(4) for “regulation 12(6)” substitute “regulation 12B(5)”;
b
in paragraph 5(3)(a) and (7) for “regulation 12(3)” substitute “regulation 12B(2)”.
Amendment of the Housing Renewal Grants Regulations 1996
3
1
The Housing Renewal Grants Regulations 1996 shall be amended as follows.
2
For regulation 31(14)(b) (notional income), substitute —
b
“rent” means eligible rent determined in accordance with —
i
in the case of a person who has not attained the qualifying age for state pension credit to whom sub-paragraph (iii) does not apply, regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent ( LHA )) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit Regulations 2006, as the case may require, less any deductions in respect of non-dependants which fall to be made under regulation 74 (non-dependant deductions) of those Regulations;
ii
in the case of a person who has attained the qualifying age for state pension credit to whom sub-paragraph (iii) does not apply, regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit (Persons who have attained qualifying age for state pension credit) Regulations 2006, as the case may require, less any deductions in respect of non-dependants which fall to be made under regulation 55 (non-dependant deductions) of those Regulations; or
iii
where paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 applies, regulation 12 (rent) and 13 (restrictions on unreasonable payments) of the Housing Benefit Regulations 2006 or the Housing Benefit (Persons who have attained qualifying age for state pension credit) Regulations 2006 as set out in paragraph 5 of that Schedule less any deductions which fall to be made in respect of non-dependants under regulation 74 (non-dependant deductions) of the Housing Benefit Regulations 2006 or regulation 55 (non-dependant deductions) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, as the case may be.
.
3
For regulation 38(7)(b) (notional capital), substitute —
b
“rent” means eligible rent determined in accordance with —
i
in the case of a person who has not attained the qualifying age for state pension credit to whom sub-paragraph (iii) does not apply, regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit Regulations 2006, as the case may require, less any deductions in respect of non-dependants which fall to be made under regulation 74 (non-dependant deductions) of those Regulations;
ii
in the case of a person who has attained the qualifying age for state pension credit to whom sub-paragraph (iii) does not apply, regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit (Persons who have attained qualifying age for state pension credit) Regulations 2006, as the case may require, less any deductions which fall to be made under regulation 55 of those Regulations; or
iii
where paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 applies, regulation 12 (rent) and 13 (restrictions on unreasonable payments) of the Housing Benefit Regulations 2006 or the Housing Benefit (Persons who have attained qualifying age for state pension credit) Regulations 2006 as set out in paragraph 5 of that Schedule less any deductions which fall to be made in respect of non-dependants under regulation 74 (non-dependant deductions) of the Housing Benefit Regulations 2006 or regulation 55 (non-dependant deductions) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, as the case may be.
.
4
In Schedule 3 (sums to be disregarded in the determination of income other than earnings) —
a
in paragraph 12(5)(b), for the definition of “rent” substitute —
b
“rent” means eligible rent determined in accordance with —
i
in the case of a person who has not attained qualifying age for state pension credit to whom sub-paragraph (iii) does not apply, regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit Regulations 2006, as the case may require, less any deductions in respect of non-dependants which fall to be made under regulation 74 (non-dependant deductions) of those Regulations; or
ii
in the case of a person who has attained the qualifying age for state pension credit to whom sub-paragraph (iii) does not apply, regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit (Persons who have attained qualifying age for state pension credit) Regulations 2006, as the case may require, less any deductions which fall to be made under regulation 55 (non-dependant deductions) of those Regulations; or
iii
where paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 applies, regulation 12 (rent) and 13 (restrictions of unreasonable payments) of the Housing Benefit Regulations 2006 or the Housing Benefit (Persons who have attained qualifying age for state pension credit) Regulations 2006 as set out in paragraph 5 of that Schedule less any deductions which fall to be made in respect of non-dependants under regulation 74 (non-dependant deductions) of the Housing Benefit Regulations 2006 or regulation 55 (non-dependant deductions) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, as the case may be.
.
b
in paragraph 67(3) , for the definition of “rent”, substitute —
“rent” means eligible rent determined in accordance with —
in the case of a person who has not attained the qualifying age for state pension credit to whom paragraph (c) does not apply, regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit Regulations 2006, as the case may require, less any deductions in respect of non-dependants which fall to be made under regulation 74 (non-dependant deductions) of those Regulations;
in the case of a person who has attained the qualifying age for state pension credit to whom sub-paragraph (c) does not apply, eligible rent determined in accordance with regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit (Persons who have attained qualifying age for state pension credit) Regulations 2006, as the case may require, less any deductions in respect of non-dependants which fall to be made under regulation 55 (non-dependant deductions) of those Regulations; or
where paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 applies, regulation 12 (rent) and 13 (restrictions on unreasonable payments) of the Housing Benefit Regulations 2006 or the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 as set out in paragraph 5 that Schedule less any deductions which fall to be made in respect of non-dependants under regulation 74 (non-dependant deductions) of the Housing Benefit Regulations 2006 or regulation 55 (non-dependant deductions) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, as the case may be.
.
5
In paragraph 58(3) of Schedule 4 (capital to be disregarded), for the definition of “rent” substitute —
“rent” means eligible rent determined in accordance with —
in the case of a person who has not attained the qualifying age for state pension credit to whom sub-paragraph (c) does not apply, regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit Regulations 2006, as the case may require, less any deductions in respect of non-dependants which fall to be made under regulation 74 (non-dependant deductions) of those Regulations;
in the case of a person who has attained the qualifying age for state pension credit to whom sub-paragraph (c) does not apply, eligible rent determined in accordance with regulation 12B (eligible rent), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for former pathfinder authorities) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, as the case may require, less any deductions in respect of non-dependants which fall to be made under regulation 55 (non-dependant deductions) of those Regulations; or
where paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 applies, regulation 12 (rent) and 13 (restrictions on unreasonable payments) of the Housing Benefit Regulations 2006 or the Housing Benefit (Persons who have attained qualifying age for state pension credit) Regulations 2006 as set out in paragraph 5 that Schedule less any deductions which fall to be made in respect of non-dependants under regulation 74 (non-dependant deductions) of the Housing Benefit Regulations 2006 or regulation 55 (non-dependant deductions) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, as the case may be.
.
Amendment of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001
4
1
The Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 shall be amended as follows.
2
In regulation 7 (decisions superseding earlier decisions) —
a
omit paragraphs (2ZA), (2B) and (2C);
b
in paragraph (3) omit “regulation 88(3) of the Housing Benefit Regulations, regulation 69(3) of the Housing Benefit (State Pension Credit) Regulations”.
3
After regulation 7 (decisions superseding earlier decisions) insert —
Decisions superseding earlier decisions in accordance with paragraph 4(4A) of Schedule 7 to the Act
7A
1
The prescribed cases and circumstances in which a decision must be made under paragraph 4 of Schedule 7 to the Act (decisions superseding earlier decisions) are set out in paragraphs (2) to (4).
2
The appropriate relevant authority must make a decision superseding an earlier decision where it is required to determine a maximum rent (LHA) in accordance with regulation 13C of the Housing Benefit Regulations and regulation 13C of the Housing Benefit (State Pension Credit) Regulations (when a maximum rent (LHA) is to be determined).
3
The appropriate relevant authority must make a decision superseding an earlier decision in any case to which regulation 14(1)(f) or (g) or the Housing Benefit Regulations or regulation 14(1)(f) or (g) of the Housing Benefit (State Pension Credit) Regulations (requirement to refer to rent officers) applies.
4
The appropriate relevant authority must make a decision superseding an earlier decision where a change of circumstances specified in regulation 88(3) of the Housing Benefit Regulations or regulation 69(3) of the Housing Benefit (State Pension Credit) Regulations (changes of circumstances which do not need to be notified) occurs.
.
4
In regulation 8 (date from which a decision superseding an earlier decision takes effect) —
a
in paragraph (6A) for “regulation 7(2ZA)” substitute “regulation 7A(3)”;
b
for paragraph (15) substitute —
15
A decision to which regulation 7A(2) applies shall take effect from the first day of the benefit week in which the determination in accordance with regulation 13C of the Housing Benefit Regulations or regulation 13C of the Housing Benefit (State Pension Credit) Regulations (when maximum rent (LHA) is to be determined) was made.
.
Amendment of the Discretionary Financial Assistance Regulations 2001
5
For regulation 4(a) (limit on the amount of the discretionary housing payment that may be made) of the Discretionary Financial Assistance Regulations 2001 substitute —
a
periodical payments in respect of the dwelling which a person occupies as his home, other than payments in respect of council tax, an amount equal to the aggregate of the payments specified in —
i
regulation 12(1) of the Housing Benefit Regulations less the aggregate of the amounts referred to in regulation 12B(2) of those Regulations calculated on a weekly basis in accordance with regulations 80 and 81 of those Regulations; or
ii
regulation 12(1) of the Housing Benefit (State Pension Credit) Regulations less the aggregate of the amounts referred to in regulation 12B(2) of those Regulations, calculated on a weekly basis in accordance with regulations 61 and 62 of those Regulations; or
.
Amendment of Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006
6
1
Schedules 3 and 4 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 shall be amended as follows.
2
For paragraphs 4 and 5 of Schedule 3 substitute —
Eligible rent
4
1
Subject to the following provisions of this paragraph, the eligible rent of a person —
a
who was entitled to housing benefit on both the first date and the second date; or
b
who is liable to make payments in respect of a dwelling occupied by him as his home, which is exempt accommodation, shall be determined in accordance with —
i
regulations 12 (rent) and 13 (maximum rent) of the Housing Benefit Regulations, or, as the case may be,
ii
regulations 12 (rent) and 13 (maximum rent) of the Housing Benefit (State Pension Credit) Regulations,
as set out in paragraph 5.
2
Sub-paragraph (1)(a) shall not apply to —
a
any determination of a person’s eligible rent in a case where a relevant authority is required to determine a maximum rent (LHA) by virtue of regulation 13C of the Housing Benefit Regulations or, as the case may be, regulation 13C of the Housing Benefit (State Pension Credit) Regulations; or
b
any subsequent determination of his eligible rent.
3
Sub-paragraph (1)(a) shall only apply in a case where —
a
either —
i
the dwelling occupied as his home by a person to whom sub-paragraph (1)(a) refers is the same on both the first date and the second date; or
ii
the dwelling so occupied was not the same by reason only that the change was caused by a fire, flood, explosion or natural catastrophe rendering the dwelling occupied as the home on the first date uninhabitable; and
b
the person —
i
was continuously entitled to and in receipt of housing benefit between the first date and the second date in respect of the dwelling to which head (a) above applies; or
ii
was not entitled to or receiving housing benefit for a period not exceeding 4 weeks, but was in continuous occupation of the dwelling to which head (a) above refers between the first date and the second date; or
iii
is a person to whom sub-paragraph (4) applies.
4
This sub-paragraph applies in the case of a person (“the claimant”) who becomes, or whose partner becomes, a welfare to work beneficiary, and —
a
the claimant ceases to be entitled to housing benefit in respect of his residence in the dwelling he occupies as his home;
b
the claimant subsequently becomes re-entitled to housing benefit —
i
in respect of the same dwelling, or
ii
in respect of a different dwelling in a case to which sub-paragraph (3)(a)(ii) applies; and
c
the first day of that entitlement is within 52 weeks of the claimant or his partner becoming a welfare to work beneficiary.
5
A person shall be deemed to fulfil the requirements of sub-paragraphs (1)(a) and (3), where —
a
he occupies the dwelling which he occupied on the relevant date;
b
this paragraph applied to the previous beneficiary on the relevant date; and
c
the requirements of sub-paragraphs (6) and (7) are satisfied in his case.
6
The requirements of this sub-paragraph are that the person was, on the relevant date —
a
the partner of the previous beneficiary; or
b
in a case where the previous beneficiary died on the relevant date, was a person to whom sub-paragraph (10)(b), (c) or (d) of regulation 13 (restrictions on unreasonable payments), as specified in paragraph 5, applied and for the purposes of this sub-paragraph “claimant” in that paragraph of that regulation shall be taken to be a reference to the previous beneficiary.
7
The requirements of this sub-paragraph are that a claim for housing benefit is made within 4 weeks of the relevant date and where such a claim is made it shall be treated as having been made on the relevant date.
8
The eligible rent of a person to whom —
a
regulation 10A of and Schedule A1 to the Housing Benefit Regulations (entitlement to housing benefit by refugees), or, as the case may be,
b
regulation 10A of and Schedule A1 to the Housing Benefit (State Pension Credit) Regulations (entitlement to housing benefit by refugees)
apply, shall be determined in accordance with —
i
regulations 12 (rent) and 13 (maximum rent) of the Housing Benefit Regulations, or, as the case may be,
ii
regulations 12 (rent) and 13 (maximum rent) of the Housing Benefit (State Pension Credit) Regulations,
as set out in paragraph 5.
9
Sub-paragraphs (1) to (8) above shall continue to have effect in the case of a claimant who has ceased to be a welfare to work beneficiary or whose partner has ceased to be such a beneficiary where the claimant is entitled to housing benefit at the end of the 52 week period to which sub-paragraph (4)(c) refers.
10
In this paragraph —
“the first date” means 1st January 1996, except in a case to which sub-paragraph (5) applies, when it shall be the relevant date;
“the second date” means any day after the first date for which a claimant’s entitlement to housing benefit is to be determined;
“eligible rent” means as the case may require, an eligible rent determined in accordance with —
regulations 12B (eligible rent), 12C (eligible rent and maximum rent), 12D (eligible rent and maximum rent (LHA)) or any of regulations 12E to 12K (transitional protection for pathfinder cases) ; or
regulations 12 (rent) and 13 (restrictions on unreasonable payments) as set out in paragraph 5 of Schedule 3 to the Consequential Provisions Regulations in a case to which paragraph 4 of that Schedule applies;
“exempt accommodation” means accommodation which is —
a resettlement place provided by persons to whom the Secretary of State has given assistance by way of grant pursuant to section 30 of the Jobseekers Act 1995 (grants for resettlement places); and for this purpose “resettlement place” shall have the same meaning as it has in that section; or
provided by a non-metropolitan county council in England within the meaning of section 1 of the Local Government Act 1972 , a housing association, a registered charity or voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision;
“imprisoned” means detained in custody pending sentence upon conviction or under a sentence imposed by a court;
“previous beneficiary” means a person —
who died, left the dwelling or was imprisoned, as the case may be;
who was on that date in receipt of housing benefit or was on that date within 52 weeks of having become a welfare to work beneficiary; and
to whom this regulation applied on that date;
and, in this paragraph, a reference to a person occupying a dwelling as his home shall be taken to include a person who is treated as occupying a dwelling as his home by virtue of regulation 7 of the Housing Benefit Regulations or, as the case may be, regulation 7 of the Housing Benefit (State Pension Credit) Regulations;
“the qualifying age for state pension credit” means (in accordance with section 1(2)(b) and (6) of the State Pension Credit Act 2002 ) —
in the case of a woman, pensionable age; or
in the case of a man, the age which is pensionable age in the case of a woman born on the same day as the man;
“relevant authority” means an authority administering housing benefit;
“the relevant date” means the date —
of the death of a previous beneficiary;
on which a previous beneficiary who was the claimant’s partner left the dwelling so that he and the claimant ceased to be living together as husband and wife; or
on which a previous beneficiary, other than a beneficiary to whom regulation 7(13) of the Housing Benefit Regulations or, as the case may be, regulation 7(13) of the Housing Benefit (State Pension Credit) Regulations applied, was imprisoned, but only where on that date he was the partner of the claimant,
as the case may be;
“state pension credit” means state pension credit under the State Pension Credit Act 2002;
“welfare to work beneficiary” means a person to whom regulation 13A(1) of the Social Security (Incapacity for Work) (General) Regulations 1995 applies.
5
1
For the purposes of paragraph 4(1), regulation 12 of both the Housing Benefit Regulations and the Housing Benefit (State Pension Credit) Regulations is as follows —
Rent
12
1
Subject to the following provision of this regulation, the payments in respect of which housing benefit is payable in the form of a rent rebate or allowance are the following periodical payments which a person is liable to make in respect of the dwelling which he occupies as his home —
a
payments of, or by way of, rent;
b
payments in respect of a licence or permission to occupy the dwelling;
c
payments by way of mesne profits or, in Scotland, violent profits;
d
payments in respect of, or in consequence of, use and occupation of the dwelling;
e
payments of, or by way of, service charges payment of which is a condition on which the right to occupy the dwelling depends;
f
mooring charges payable for a houseboat;
g
where the home is a caravan or a mobile home, payments in respect of the site on which it stands;
h
any contribution payable by a person resident in an almshouse provided by a housing association which is either a charity of which particulars are entered in the register of charities established under section 3 of the Charities Act 1993 (register of charities) or an exempt charity within the meaning of that Act, which is a contribution towards the cost of maintaining that association’s almshouses and essential services in them;
i
payments under a rental purchase agreement, that is to say an agreement for the purchase of a dwelling which is a building or part of one under which the whole or part of the purchase price is to be paid in more than one instalment and the completion of the purchase is deferred until the whole or a specified part of the purchase price has been paid; and
j
where, in Scotland, the dwelling is situated on or pertains to a croft within the meaning of section 3(1) of the Crofters (Scotland) Act 1993 , the payment in respect of the croft land.
2
A rent rebate or, as the case may be, a rent allowance shall not be payable in respect of the following periodical payments —
a
payments under a long tenancy except a shared ownership tenancy granted by a housing association or a housing authority;
b
payments under a co-ownership scheme;
c
payments by an owner;
d
payments under a hire purchase, credit sale or conditional sale agreement except to the extent the conditional sale agreement is in respect of land; and
e
payments by a Crown tenant.
3
Subject to any apportionment in accordance with paragraphs (4) and (5) and to regulations 13 and 13ZA (restrictions on unreasonable payments and rent increases), the amount of a person’s eligible rent shall be the aggregate of such payments specified in paragraph (1) as he is liable to pay less —
a
except where he is separately liable for charges for water, sewerage or allied environmental services, an amount determined in accordance with paragraph (6);
b
where payments include service charges which are wholly or partly ineligible, an amount in respect of the ineligible charges determined in accordance with Schedule 1; and
c
where he is liable to make payments in respect of any service charges to which paragraph (1)(e) does not apply, but to which paragraph 3(2) of Schedule 1 (unreasonably low service charges) applies in the particular circumstances, an amount in respect of such charges determined in accordance with paragraph 3(2) of Schedule 1.
4
Where the payments specified in paragraph (1) are payable in respect of accommodation which consists partly of residential accommodation and partly of other accommodation, only such proportion thereof as is referable to the residential accommodation shall count as eligible rent for the purposes of these Regulations.
5
Where more than one person is liable to make payments in respect of a dwelling, the payments specified in paragraph (1) shall be apportioned for the purpose of calculating the eligible rent for each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each such person.
6
The amount of the deduction referred to in paragraph (3) shall be —
a
except in a case to which sub-paragraph (c) applies, if the dwelling occupied by the claimant is a self-contained unit, the amount of the charges;
b
in any other case except one to which sub-paragraph (c) applies, the proportion of those charges in respect of the self-contained unit, which is obtained by dividing the area of the dwelling occupied by the claimant by the area of the self-contained unit of which it forms part; or
c
where the charges vary in accordance with the amount of water actually used, the amount which the appropriate authority considers to be fairly attributable to water and sewerage services, having regard to the actual or estimated consumption of the claimant.
7
In this regulation and Schedule 1 —
“service charges” means periodical payments for services, whether or not under the same agreement as that under which the dwelling is occupied, or whether or not such a charge is specified as separate from or separately identified within other payments made by the occupier in respect of the dwelling; and
“services” means services performed or facilities (including the use of furniture) provided for, or rights made available to, the occupier of a dwelling.
.
2
For the purposes of paragraph 4(1), regulation 13 of both the Housing Benefit Regulations and the Housing Benefit (State Pension Credit) Regulations is as follows —
Restrictions on unreasonable payments
13
1
Where a rent is registered in respect of a dwelling under Part 4 or 5 of the Rent Act 1977 or Part 4 or 7 of the Rent (Scotland) Act 1984 and the rent recoverable from a claimant is limited to the rent so registered, his eligible rent determined in accordance with regulation 12 (rent) shall not exceed the rent so registered.
2
Where a rent has been determined by a rent assessment committee or a private rented housing committee in respect of a dwelling under Part 1 of the Housing Act 1988 or Part 2 of the Housing (Scotland) Act 1988 , the claimant’s eligible rent determined in accordance with regulation 12 shall not exceed the rent determined by the committee during the twelve months beginning with the first day on which that determination had effect.
3
The relevant authority shall consider —
a
whether by reference to a determination or re-determination made by a rent officer in exercise of a function conferred on him by an order under section 122 of the Housing Act 1996 or otherwise, whether a claimant occupies a dwelling larger than is reasonably required by him and others who also occupy that dwelling (including any non-dependants of his and any person paying rent to him) having regard in particular to suitable alternative accommodation occupied by a household of the same size; or
b
whether by reference to a determination or re-determination made by a rent officer in exercise of a function conferred on him by an order under section 122 of the Housing Act 1996 or otherwise, whether the rent payable for his dwelling is unreasonably high by comparison with the rent payable in respect of suitable alternative accommodation elsewhere,
and, where it appears to the authority that the dwelling is larger than is reasonably required or that the rent is unreasonably high, the authority shall, subject to paragraphs (4) to (7), treat the claimant’s eligible rent, as reduced by such amount as it considers appropriate having regard in particular to the cost of suitable alternative accommodation elsewhere and the claimant’s maximum housing benefit shall be calculated by reference to the eligible rent as so reduced.
4
If any person to whom paragraph (10) applies —
a
is aged 60 or over;
b
is incapable of work for the purposes of one or more of the provisions of the Social Security Act, or Part 2 of the Act;
c
is treated as capable of work in accordance with regulations made under section 171E of the Act ; or
d
is a member of the same household as a child or young person for whom he or his partner is responsible,
no deduction shall be made under paragraph (3) unless suitable cheaper alternative accommodation is available and the authority considers that, taking into account the relevant factors, it is reasonable to expect the claimant to move from his present accommodation.
5
No deduction shall be made under paragraph (3) for a period of 12 months from the date of death of any person to whom paragraph (10) applied or, had a claim been made, would have applied, if the dwelling which the claimant occupies is the same as that occupied by him at that date except where the deduction began before the death occurred.
6
For the purposes of paragraph (5), a claimant shall be treated as occupying the dwelling if paragraph (13) of regulation 7 (circumstances in which a person is to be treated as occupying a dwelling) is satisfied and for that purpose sub-paragraph (b) of that paragraph shall be treated as if it were omitted.
7
Without prejudice to the operation of paragraph (4), but subject to paragraph (8), where the relevant authority is satisfied that a person to whom paragraph (10) applies was able to meet the financial commitments for his dwelling when they were entered into, no deduction shall be made under paragraph (3) during the first 13 benefit weeks of the claimant’s award of housing benefit.
8
Paragraph (7) shall not apply where a claimant was previously entitled to benefit in respect of an award of housing benefit which fell wholly or partly less than 52 weeks before the commencement of his current award of housing benefit.
9
For the purposes of this regulation —
a
in deciding what is suitable alternative accommodation, the relevant authority shall take account of the nature of the alternative accommodation and the facilities provided having regard to the age and state of health of all the persons to whom paragraph (10) applies and, in particular, where a claimant’s present dwelling is occupied with security of tenure, accommodation shall not be treated as suitable alternative accommodation unless that accommodation will be occupied on terms which will afford security of tenure reasonably equivalent to that presently enjoyed by the claimant; and
b
the relevant factors in paragraph (4) are the effects of a move to alternative accommodation on —
i
the claimant’s prospects of retaining his employment; and
ii
the education of any child or young person referred to in paragraph (4)(d) if such a move were to result in a change of school.
10
This paragraph applies to the following persons —
a
the claimant;
b
any member of his family;
c
if the claimant is a member of a polygamous marriage, any partners of his and any child or young person for whom he or a partner is responsible and who is a member of the same household;
d
subject to paragraph (11), any relative of the claimant or his partner who occupies the same dwelling as the claimant, whether or not they reside with him.
11
Paragraph (10)(d) shall only apply to a relative who has no separate right of occupation of the dwelling which would enable him to continue to occupy it even if the claimant ceased his occupation of it.
.
3
For the purposes of regulation 12(3) of both the Housing Benefit Regulations and the Housing Benefit (State Pension Credit) Regulations, as inserted by paragraph (1) above, regulation 13ZA of both those Regulations is as follows —
Restrictions on rent increases
13ZA
1
Subject to paragraph (2), where a claimant’s eligible rent is increased during an award of housing benefit, the relevant authority shall, if it considers, whether by reference to a determination or re-determination made by a rent officer in exercise of a function conferred on him by an order under section 122 of the Housing Act 1996, or otherwise, either —
a
that the increase is unreasonably high having regard in particular to the level of increases for suitable alternative accommodation, or
b
in the case of an increase which takes place less than 12 months after the date of the previous increase, that the increase is unreasonable having regard to the length of time since that previous increase,
treat the eligible rent as reduced either by the full amount of the increase or, if it considers that a lesser increase was reasonable in all the circumstances, by the difference between the full amount of the increase and the increase that is reasonable having regard in particular to the level of increases for suitable alternative accommodation, and the claimant’s maximum housing benefit shall be calculated by reference to the eligible rent as so reduced.
2
No deduction shall be made under this regulation for a period of 12 months from the date of death of any person to whom paragraph (11) of regulation 13 (restrictions on unreasonable payments) applied or, had a claim been made, would have applied, if the dwelling which the claimant occupies is the same as that occupied by him at that date except where the deduction began before the death occurred.
3
For the purposes of paragraph (2), a claimant shall be treated as occupying the dwelling if paragraph (13) of regulation 7 (circumstances in which a person is to be treated as occupying a dwelling) is satisfied and for that purpose sub-paragraph (b) of that paragraph shall be treated as if it were omitted.
.
.
3
For paragraph 8 of Schedule 3 substitute —
Local reference rent taper
8
1
Regulation 13 of both the Housing Benefit Regulations and the Housing Benefit (State Pension Credit) Regulations (maximum rent) shall have effect in the case of a claimant to whom any of sub-paragraphs (3) to (6) applies subject to the amendment specified in sub-paragraph (2).
2
In paragraph (3) of regulation 13 at the end, add “plus 50 per cent. of the amount by which the claim related rent exceeds the local reference rent.”
3
This sub-paragraph applies to a claimant who has been continuously entitled to and in receipt of housing benefit —
a
in respect of the same dwelling for a period which includes 5th October 1997; and
b
which included an addition by virtue of paragraph (3) or (4) of regulation 11 of the 1987 Regulations as they had effect on 5th October 1997.
4
Sub-paragraph (3) above shall continue to have effect in the case of a person who has ceased to be a welfare to work beneficiary or whose partner has ceased to be such a beneficiary where the person is entitled to housing benefit at the end of the 52 week period to which sub-paragraph (5) refers.
5
This sub-paragraph applies in the case of a person —
a
who was entitled to housing benefit in respect of the dwelling he occupied as his home on or before 5th October 1997;
b
whose entitlement to housing benefit in respect of that dwelling was continuous from that date until it ceased because either the person or his partner became a welfare to work beneficiary;
c
who on the day before entitlement to housing benefit ceased, was in receipt of an addition to benefit by virtue of paragraph (4) or (5) of regulation 11 of the 1987 Regulations as they had effect on 5th October 1997; and
d
who subsequently becomes re-entitled to housing benefit in respect of that dwelling within 52 weeks of him or his partner becoming a welfare to work beneficiary.
6
In this paragraph, “welfare to work beneficiary” means a person to whom regulation 13A(1) of the Social Security (Incapacity for Work) (General) Regulations 1995 applies.
.
4
In Schedule 4 —
a
for regulation 10A(1), substitute —
10A
1
Where a person, who has made a claim for asylum, is notified that he has been recorded by the Secretary of State as a refugee, these Regulations shall have effect with respect to his entitlement to housing benefit for the relevant period which applies in his case in accordance with Schedule A1(treatment of claims for housing benefit by refugees), but that entitlement is —
a
subject to the provisions of Schedule A1; and
b
with respect to regulations 12 (rent) and 13 (maximum rent), subject to paragraph 4(8) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006.
;
b
for paragraph 3 of Schedule A1 as inserted by paragraph 2(2), substitute —
Eligible rent
3
1
Subject to sub-paragraph (2), for the purpose of determining a claimant’s eligible rent —
a
regulations 12 and 13 have effect as they were in force on 1st January 1996;
b
in paragraph (1) of regulation 12 of the former Regulations (restrictions on rent increases) as saved by paragraph 5 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 the words from “whether by reference” to “or otherwise” shall be omitted; and
c
regulation 14 (requirement to refer to a rent officer) shall not have effect.
2
In determining a claimant’s eligible rent for the relevant period, the relevant authority may have regard to information in their possession or which they may obtain, as to the level of rents which had effect in that period in respect of any area in which the claimant occupied a dwelling as his home and in respect of which his claim for housing benefit is made.
; and
c
for paragraph 7 of Schedule 1A, substitute —
Calculation of amount of benefit
7
The appropriate maximum housing benefit to which a claimant is entitled under regulation 10A and this Schedule shall be calculated on a weekly basis in accordance with Part 8 as it had effect for the relevant period.
.
Signed by authority of the Secretary of State for Work and Pensions.
James Plaskitt
Parliamentary Under Secretary of State,
Department for Work and Pensions
2nd October 2007


type: legislation

jurisdiction: UK

text:
PART 1 GENERAL
Citation, commencement etc.
1
1
These Regulations may be cited as the Transfer of Funds (Information on the Payer) Regulations 2007 and come into force on 15th December 2007.
2
These Regulations are prescribed for the purposes of sections 168(4)(b) (appointment of persons to carry out investigations in particular cases) and 402(1)(b) (power of the Authority to institute proceedings for certain other offences) of the 2000 Act .
Interpretation
2
1
In these Regulations —
“the 2000 Act” means the Financial Services and Markets Act 2000;
“authorised person” means a person who is authorised for the purposes of the 2000 Act ;
“the Authority” means the Financial Services Authority;
“ the Commissioners ” means the Commissioners for Her Majesty’s Revenue and Customs;
“money laundering” means an act which falls within section 340(11) of the Proceeds of Crime Act 2002 ;
“notice” means a notice in writing;
“the payments regulation” means Regulation 1781/2006/ EC of the European Parliament and of the Council of 15th November 2006 on information on the payer accompanying transfers of funds;
“supervisory authority” in relation to any payment service provider means the supervisory authority specified for such a payment service provider by regulation 3;
“terrorist financing” means an offence under —
section 15 (fund-raising), 16 (use and possession), 17 (funding arrangements), 18 (money laundering) or 63 (terrorist finance: jurisdiction) of the Terrorism Act 2000;
paragraph 7(2) or (3) of Schedule 3 to the Anti-Terrorism, Crime and Security Act 2001 (freezing orders);
article 7, 8 or 10 of the Terrorism (United Nations Measures) Order 2006 ; or
article 7, 8 or 10 of the Al-Qaida and Taliban (United Nations Measures) Order 2006 ;
2
Unless otherwise defined, expressions used in these Regulations and the payments regulation have the same meaning as in the payments regulation.
3
References in these Regulations to numbered Articles are references to Articles of the payments regulation.
PART 2 SUPERVISION
Supervisory authorities
3
1
The Authority is the supervisory authority for payment service providers who are authorised persons.
2
The Commissioners are the supervisory authority for payment service providers who are not authorised persons.
Duties of supervisory authorities
4
1
A supervisory authority must effectively monitor the payment service providers for whom it is the supervisory authority and take necessary measures for the purpose of securing compliance by such payment service providers with the requirements of the payments regulation.
2
A supervisory authority which, in the course of carrying out any of its functions under these Regulations, knows or suspects that a payment service provider is or has engaged in money laundering or terrorist financing must promptly inform the Serious Organised Crime Agency.
3
A disclosure made under paragraph (2) is not to be taken to breach any restriction, however imposed, on the disclosure of information.
4
The functions of the Authority under these Regulations shall be treated for the purposes of Parts 1, 2 and 4 of Schedule 1 to the 2000 Act (the Financial Services Authority) as functions conferred on the Authority under that Act.
Costs of supervision
5
1
The Authority and the Commissioners may impose charges on payment service providers supervised by them.
2
Charges levied under paragraph (1) must not exceed such amount as the Authority or the Commissioners (as the case may be) consider will enable them to meet any expenses reasonably incurred by them in carrying out their functions under these Regulations or for any incidental purpose.
3
Without prejudice to the generality of paragraph (2), a charge may be levied in respect of each of the premises at which a payment service provider carries on (or proposes to carry on) business.
4
The Authority must apply amounts paid to it by way of penalties imposed under regulation 11 towards expenses incurred in carrying out its functions under these Regulations or for any incidental purpose.
PART 3 ENFORCEMENT
Powers of supervisory authorities
Interpretation
6
In this Part —
“officer”, except in regulations 10(3) and 16, means —
an officer of the Authority, including a member of the Authority’s staff or an agent of the Authority; or
an officer of Revenue and Customs;
“recorded information” includes information recorded in any form and any document of any nature.
Power to require information from, and attendance of, relevant and connected persons
7
1
An officer may, by notice to a payment service provider or to a person connected with a payment service provider, require the payment service provider or the connected person, as the case may be —
a
to provide such information as may be specified in the notice;
b
to produce such recorded information as may be so specified; or
c
to attend before an officer at a time and place specified in the notice and answer questions.
2
For the purposes of paragraph (1), a person is connected with a payment service provider if he is, or has at any time been, in relation to the payment service provider, a person listed in Schedule 1 to these Regulations.
3
An officer may exercise powers under this regulation only if the information sought to be obtained as a result is reasonably required in connection with the exercise by the supervisory authority for which he acts of its functions under these Regulations.
4
Where an officer requires information to be provided or produced pursuant to paragraph (1)(a) or (b) —
a
the notice must set out the reasons why the officer requires the information to be provided or produced; and
b
such information must be provided or produced —
i
before the end of such reasonable period as may be specified in the notice; and
ii
at such place as may be so specified.
5
In relation to information recorded otherwise than in legible form, the power to require production of it includes a power to require the production of a copy of it in legible form or in a form from which it can readily be produced in visible and legible form.
6
The production of a document does not affect any lien which a person has on the document.
7
A person may not be required under this regulation to provide or produce information or to answer questions which that person would be entitled to refuse to provide, produce or answer on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to provide the name and address of his client.
8
Subject to paragraphs (9) and (10), a statement made by a person in compliance with a requirement imposed on that person under paragraph (1)(c) is admissible in evidence in any proceedings, so long as it also complies with any requirements governing the admissibility of evidence in the circumstances in question.
9
In criminal proceedings in which a person is charged with an offence to which this paragraph applies —
a
no evidence relating to the statement may be adduced; and
b
no question relating to it may be asked,
by or on behalf of the prosecution unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
10
Paragraph (9) applies to any offence other than one under —
a
section 5 of the Perjury Act 1911 (false statements without oath);
b
section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations); or
c
Article 10 of the Perjury (Northern Ireland) Order 1979 (false unsworn statements).
11
In the application of this regulation to Scotland, the reference in paragraph (7) to —
a
proceedings in the High Court is to be read as a reference to proceedings in the Court of Session; and
b
an entitlement on grounds of legal professional privilege is to be read as a reference to an entitlement on the grounds of confidentiality of communications —
i
between a professional legal adviser and his client; or
ii
made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings.
Entry, inspection without a warrant etc.
8
1
Where an officer has reasonable cause to believe that any premises are being used by a payment service provider in connection with the payment service provider’s business or professional activities, he may on producing evidence of his authority at any reasonable time —
a
enter the premises;
b
inspect the premises;
c
observe the carrying on of business or professional activities by the payment service provider;
d
inspect any recorded information found on the premises;
e
require any person on the premises to provide an explanation of any recorded information or to state where it may be found;
f
inspect any cash found on the premises.
2
An officer may take copies of, or make extracts from, any recorded information found under paragraph (1).
3
Paragraphs (1)(d) and (e) and (2) do not apply to recorded information which the payment service provider would be entitled to refuse to disclose on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to provide the name and address of his client and, for this purpose, regulation 7(11) applies to this paragraph as it applies to regulation 7(7).
4
An officer may exercise powers under this regulation only if the information sought to be obtained as a result is reasonably required in connection with the exercise by the supervisory authority for which he acts of its functions under these Regulations.
5
In this regulation, “premises” means any premises other than premises used only as a dwelling.
Entry to premises under warrant
9
1
A justice may issue a warrant under this paragraph if satisfied on information on oath given by an officer that there are reasonable grounds for believing that the first, second or third set of conditions is satisfied.
2
The first set of conditions is —
a
that there is on the premises specified in the warrant recorded information in relation to which a requirement could be imposed under regulation 7(1)(b); and
b
that if such a requirement were to be imposed —
i
it would not be complied with; or
ii
the recorded information to which it relates would be removed, tampered with or destroyed.
3
The second set of conditions is —
a
that a person on whom a requirement has been imposed under regulation 7(1)(b) has failed (wholly or in part) to comply with it; and
b
that there is on the premises specified in the warrant recorded information which has been required to be produced.
4
The third set of conditions is —
a
that an officer has been obstructed in the exercise of a power under regulation 8; and
b
that there is on the premises specified in the warrant recorded information or cash which could be inspected under regulation 8(1)(d) or (f).
5
A justice may issue a warrant under this paragraph if satisfied on information on oath given by an officer that there are reasonable grounds for suspecting that —
a
an offence under these Regulations has been, is being or is about to be committed by a payment service provider; and
b
there is on the premises specified in the warrant recorded information relevant to whether that offence has been, or is being or is about to be committed.
6
A warrant issued under this regulation shall authorise an officer —
a
to enter the premises specified in the warrant;
b
to search the premises and take possession of any recorded information or anything appearing to be recorded information specified in the warrant or to take, in relation to any such recorded information, any other steps which may appear to be necessary for preserving it or preventing interference with it;
c
to take copies of, or extracts from, any recorded information specified in the warrant;
d
to require any person on the premises to provide an explanation of any recorded information appearing to be of the kind specified in the warrant or to state where it may be found;
e
to use such force as may reasonably be necessary.
7
Where a warrant is issued by a justice under paragraph (1) or (5) on the basis of information on oath given by an officer of the Authority, for “an officer” in paragraph (6) substitute “a constable”.
8
In paragraphs (1), (5) and (7), “justice” means —
a
in relation to England and Wales, a justice of the peace;
b
in relation to Scotland, a justice within the meaning of section 307 of the Criminal Procedure (Scotland) Act 1995 (interpretation);
c
in relation to Northern Ireland, a lay magistrate.
9
In the application of this regulation to Scotland, the references in paragraphs (1), (5) and (7) to information on oath are to be read as references to evidence on oath.
Failure to comply with information requirement
10
1
If, on an application made by a supervisory authority it appears to the court that a person (the “information defaulter”) has failed to do something that he was required to do under regulation 7(1), the court may make an order under this regulation.
2
An order under this regulation may require the information defaulter —
a
to do the thing that he failed to do within such period as may be specified in the order;
b
otherwise to take such steps to remedy the consequences of the failure as may be so specified.
3
If the information defaulter is a body corporate, a partnership or an unincorporated body of persons which is not a partnership, the order may require any officer of the body corporate, partnership or body, who is (wholly or partly) responsible for the failure to meet such costs of the application as are specified in the order.
4
In this regulation, “court” means —
a
in England and Wales and Northern Ireland, the High Court or the county court;
b
in Scotland, the Court of Session or the sheriff court.
Civil penalties, review and appeals
Power to impose civil penalties
11
1
A supervisory authority may impose a penalty of such amount as it considers appropriate on a payment service provider in respect of any transfer of funds to which the payments regulation applies —
a
in the case of the payment service provider of the payer, if he fails to comply with any requirement in —
i
Article 5(1) read with Article 6(1) (information accompanying transfers of funds within the EEA );
ii
Article 5(2) read with Article 5(3) or (4) (whichever is relevant) (verification of information);
iii
Article 5(5) (record keeping);
iv
Article 6(2) (information to be provided following request);
v
Article 7(1) read with Article 7(2) (information accompanying transfers of funds from the EEA to outside the EEA);
b
in the case of the payment service provider of the payee, if he fails to comply with any requirement in Article 8 (detection of missing information), 9(1) (transfers of funds with missing or incomplete information), 9(2) sub-paragraph 2 (reporting) or 11 (record keeping);
c
in the case of the intermediary payment service provider, if he fails to comply with any requirement in Article 12 (keeping information on the payer with the transfer) or 13(3), (4) or (5) (use of a payment system with technical limitations);
and, for this purpose, “appropriate” means effective, proportionate and dissuasive.
2
The supervisory authority must not impose a penalty on a person under paragraph (1) where there are reasonable grounds for it to be satisfied that the person took all reasonable steps and exercised all due diligence to ensure that the requirement would be complied with.
3
In deciding whether a person has failed to comply with any requirement of the payments regulation, the supervisory authority must consider whether the person followed any relevant guidance which was at the time —
a
issued by a supervisory authority or any other appropriate body;
b
approved by the Treasury; and
c
published in a manner approved by the Treasury as suitable in their opinion to bring the guidance to the attention of persons likely to be affected by it.
4
In paragraph (3), an “appropriate body” means any body which regulates or is representative of any trade, profession, business or employment carried on by the payment service provider.
5
Where the Commissioners decide to impose a penalty under this regulation, they must give the payment service provider notice of —
a
their decision to impose the penalty and its amount;
b
the reasons for imposing the penalty;
c
the right to a review under regulation 12; and
d
the right to appeal under regulation 13(1)(b).
6
Where the Authority proposes to impose a penalty under this regulation, it must give the payment service provider notice of —
a
its proposal to impose the penalty and the proposed amount;
b
the reasons for imposing the penalty; and
c
the right to make representations to it within a specified period (which may not be less than 28 days).
7
The Authority must then decide, within a reasonable period, whether to impose a penalty under this regulation and it must give the payment service provider notice of —
a
its decision not to impose a penalty; or
b
the following matters —
i
its decision to impose a penalty and the amount;
ii
the reasons for its decision; and
iii
the right to appeal under regulation 13(1)(a).
8
A penalty imposed under this regulation is payable to the supervisory authority which imposes it.
Review procedure
12
1
Any payment service provider who is the subject of a decision by the Commissioners to impose a penalty under regulation 11 may by notice to the Commissioners require them to review that decision.
2
The Commissioners need not review any decision unless the notice requiring the review is given within 45 days beginning with the date on which they first gave notice of the decision to the payment service provider requiring the review.
3
Where the Commissioners are required under this regulation to review any decision they must either —
a
confirm the decision; or
b
withdraw or vary the decision and take such further steps (if any) in consequence of the withdrawal or variation as they consider appropriate.
4
Where the Commissioners do not, within 45 days beginning with the date on which the review was required by a payment service provider, give notice to that person of their determination of the review, they are to be taken for the purposes of these Regulations to have confirmed the decision.
Appeals
13
1
A payment service provider may appeal from a decision by —
a
the Authority under regulation 11(7); and
b
the Commissioners on a review under regulation 12.
2
An appeal from a decision by —
a
the Authority is to the Financial Services and Markets Tribunal ; and
b
the Commissioners is to a VAT and duties tribunal .
3
The provisions of Part 9 of the 2000 Act (hearings and appeals), subject to the modifications set out in paragraph 1 of Schedule 2, apply in respect of appeals to the Financial Services and Markets Tribunal made under this regulation as they apply in respect of references made to that Tribunal under that Act.
4
The provisions of Part 5 of the Value Added Tax Act 1994 (appeals), subject to the modifications set out in paragraph 2 of Schedule 2, apply in respect of appeals to a VAT and duties tribunal made under this regulation as they apply in respect of appeals made to such a tribunal under section 83 (appeals) of that Act.
5
A VAT and duties tribunal hearing an appeal under paragraph (2) has the power to —
a
quash or vary any decision of the supervisory authority, including the power to reduce any penalty to such amount (including nil) as they think proper; and
b
substitute their own decision for any decision quashed on appeal.
Criminal offences
Offences
14
1
A payment service provider is guilty of an offence in respect of any transfer of funds to which the payments regulation applies —
a
in the case of the payment service provider of the payer, if he fails to comply with any requirement in —
i
Article 5(1) read with Article 6(1) (information accompanying transfers of funds within the EEA);
ii
Article 5(2) read with Article 5(3) or (4) (whichever is relevant) (verification of information);
iii
Article 5(5) (record keeping);
iv
Article 6(2) (information to be provided following request);
v
Article 7(1) read with Article 7(2) (information accompanying transfers of funds from the EEA to outside the EEA);
b
in the case of the payment service provider of the payee, if he fails to comply with any requirement in Article 8 (detection of missing information), 9(1) or the third paragraph of Article 9 (transfers of funds with missing or incomplete information) or Article 11 (record keeping);
c
in the case of the intermediary payment service provider, if he fails to comply with any requirement in Article 12 (keeping information on the payer with the transfer) or 13(3), (4) or (5) (use of a payment system with technical limitations).
2
A payment service provider who is guilty of an offence under paragraph (1) is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both.
3
In deciding whether a person has committed an offence under paragraph (1), the court must consider whether the person followed any relevant guidance which was at the time —
a
issued by a supervisory authority or any other appropriate body;
b
approved by the Treasury; and
c
published in a manner approved by the Treasury as suitable in their opinion to bring the guidance to the attention of persons likely to be affected by it.
4
In paragraph (3), an “appropriate body” means any body which regulates or is representative of any trade, profession, business or employment carried on by the alleged offender.
5
A person is not guilty of an offence under this regulation if he took all reasonable steps and exercised all due diligence to avoid committing the offence.
6
Where a person is convicted of an offence under this regulation, he shall not also be liable to a penalty under regulation 11.
Prosecution of offences
15
1
Proceedings for an offence under regulation 14 may be instituted by —
a
the Director of Revenue and Customs Prosecutions or by order of the Commissioners;
b
the Director of Public Prosecutions; or
c
the Director of Public Prosecutions for Northern Ireland.
2
Proceedings for an offence under regulation 14 may be instituted only against a payment service provider or, where the payment service provider is a body corporate, a partnership or an unincorporated association, against any person who is liable to be proceeded against under regulation 16.
3
Where proceedings under paragraph (1) are instituted by order of the Commissioners, the proceedings must be brought in the name of an officer of Revenue and Customs.
4
Where the Commissioners investigate, or propose to investigate, any matter with a view to determining —
a
whether there are grounds for believing that an offence under regulation 14 has been committed by any person; or
b
whether a person should be prosecuted for such an offence,
that matter is to be treated as an assigned matter within the meaning of section 1(1) of the Customs and Excise Management Act 1979 .
5
Paragraphs (1) and (3) do not extend to Scotland and, in its application to the Commissioners acting in Scotland, paragraph (4)(b) shall be read as referring to the Commissioners determining whether to refer the matter to the Crown Office and Procurator Fiscal Service with a view to the Procurator Fiscal determining whether a person should be prosecuted for such an offence.
Offences by bodies corporate etc.
16
1
If an offence under regulation 14 committed by a body corporate is shown —
a
to have been committed with the consent or the connivance of an officer of the body corporate; or
b
to be attributable to any neglect on his part,
the officer as well as the body corporate is guilty of an offence and liable to be proceeded against and punished accordingly.
2
If an offence under regulation 14 committed by a partnership is shown —
a
to have been committed with the consent or the connivance of a partner; or
b
to be attributable to any neglect on his part,
the partner as well as the partnership is guilty of an offence and liable to be proceeded against and punished accordingly.
3
If an offence under regulation 14 committed by an unincorporated association (other than a partnership) is shown —
a
to have been committed with the consent or the connivance of an officer of the association; or
b
to be attributable to any neglect on his part,
the officer as well as the association is guilty of an offence and liable to be proceeded against and punished accordingly.
4
If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body.
5
Proceedings for an offence alleged to have been committed by a partnership or an unincorporated association must be brought in the name of the partnership or association (and not in that of its members).
6
A fine imposed on the partnership or association on its conviction of an offence is to be paid out of the funds of the partnership or association.
7
Rules of court relating to the service of documents are to have effect as if the partnership or association were a body corporate.
8
In proceedings for an offence brought against the partnership or association —
a
section 33 of the Criminal Justice Act 1925 (procedure on charge of offence against corporation) and Schedule 3 to the Magistrates’ Courts Act 1980 (corporations) apply as they do in relation to a body corporate;
b
section 70 of the Criminal Procedure (Scotland) Act 1995 (proceedings against bodies corporate) applies as it does in relation to a body corporate;
c
section 18 of the Criminal Justice (Northern Ireland) Act 1945 (procedure on charge) and Schedule 4 to the Magistrates’ Courts (Northern Ireland) Order 1981 (corporations) apply as they do in relation to a body corporate.
9
In this regulation —
“officer” —
in relation to a body corporate, means a director, manager, secretary, chief executive, member of the committee of management, or a person purporting to act in such a capacity; and
in relation to an unincorporated association, means any officer of the association or any member of its governing body, or a person purporting to act in such capacity; and
“partner” includes a person purporting to act as a partner.
PART 4 MISCELLANEOUS
Recovery of charges and penalties through the court
17
Any charge or penalty imposed on a payment service provider by a supervisory authority under regulation 5(1) or 11(1) is a debt due from that person to the authority, and is recoverable accordingly.
Transfers between the United Kingdom and the Channel Islands and the Isle of Man
18
In determining whether a person has failed to comply with any requirement in the payments regulation, any transfer of funds between the United Kingdom and —
a
the Channel Islands; or
b
the Isle of Man,
shall be treated as a transfer of funds within the United Kingdom.
Consequential amendments
19
Schedule 3, which contains consequential amendments, has effect.
Signatory text
Frank Roy
Claire Ward
Two of the Lords Commissioners of Her Majesty’s Treasury
22nd November 2007


text:
1
This Order may be cited as the Value Added Tax (Supply of Services) (Amendment) Order 2007 and comes into force on 1st September 2007.
2
Articles 3A and 3B of the Value Added Tax (Supply of Services) Order 1993 shall be omitted.
Frank Roy
Alan Campbell
Two of the Lord Commissioners of Her Majesty’s Treasury
25th July 2007