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Consumers, Estate Agents and Redress Act 2007 (c. 17)(The document as of February, 2008) Page 6 Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 (4) In this paragraph "enactment" means-- (a) an Act of Parliament, (b) an Act of the Scottish Parliament, (c) a Measure or Act of the National Assembly for Wales, or (d) Northern Ireland legislation, whenever passed or made. Section 25 SCHEDULE 2 Enforcement of information requirementsGas Act 1986 (c. 44)1 In section 28 of the Gas Act 1986 (orders for securing compliance with certain provisions), in subsection (8), in the definition of "relevant requirement" for "or section 27(4)(b) of the Utilities Act 2000 (order to comply with a direction under section 24 of that Act)" substitute "or section 25(5) of the Consumers, Estate Agents and Redress Act 2007 (directions to comply with requirements under section 24 of that Act)". Electricity Act 1989 (c. 29)2 In section 25 of the Electricity Act 1989 (orders for securing compliance), in subsection (8), in the definition of "relevant requirement" for "or section 27(4)(b) of the Utilities Act 2000 (order to comply with a direction under section 24 of that Act)" substitute "or section 25(5) of the Consumers, Estate Agents and Redress Act 2007 (directions to comply with requirements under section 24 of that Act)". Postal Services Act 2000 (c. 26)3 (1) The Postal Services Act 2000 is amended as follows. (2) In section 22 (final orders)-- (a) in subsection (1)-- (i) in paragraph (a) for "any condition of his licence" substitute "any relevant requirement", (ii) in paragraph (b) for "condition" substitute "requirement", and (iii) for "the condition" substitute "the requirement", and (b) for subsection (5) substitute-- " (5) In this Act--
(3) In section 23 (provisional orders)-- (a) in subsection (1)-- (i) in paragraph (a), for "any condition of his licence or is likely to contravene any such condition" substitute "any relevant requirement or is likely to contravene any such requirement", and (ii) for "the licence condition" substitute "the relevant requirement", (b) for subsection (2)(a) substitute-- " (a) that the licence holder is contravening any relevant requirement or is likely to contravene any such requirement, and " , and (c) in subsection (3) for "licence condition" substitute "relevant requirement". (4) In section 24 (confirmation of provisional orders), in subsection (1)-- (a) for paragraph (a) substitute-- " (a) it is satisfied that the licence holder is contravening any relevant requirement or is likely to contravene any such requirement, and " , and (b) in paragraph (b) for "condition" substitute "requirement". (5) In section 25 (exceptions from duty to make or confirm enforcement orders), in paragraph (b) for "condition" substitute "relevant requirement". (6) In section 26 (enforcement orders: main procedural requirements), in subsection (2)-- (a) in paragraph (c) for "condition" substitute "relevant requirement", and (b) in paragraph (d) for "condition" substitute "relevant requirement". (7) In section 30 (financial penalties)-- (a) in subsection (1)-- (i) in paragraph (a) for "condition of his licence" substitute "relevant requirement", and (ii) in paragraph (b) for "condition" substitute "requirement", and (b) in subsection (3) for "condition" substitute "relevant requirement". (8) In section 32 (imposition of financial penalties: main procedural requirements)-- (a) in subsection (2)(c), for "condition" substitute "relevant requirement", and (b) in subsection (4)(c), for "condition" substitute "relevant requirement". (9) In section 34 (time-limit on the imposition of penalties)-- (a) in subsection (1) for "licence condition" substitute "relevant requirement", and (b) in subsection (2) for "licence condition" substitute "relevant requirement". (10) In section 126 (index of defined expressions) at the appropriate place in the table insert--
Section 30 SCHEDULE 3 Abolition of consumer bodies: transitional provisionComplaints and investigations functions of Gas and Electricity Consumer Council1 (1) This paragraph applies to-- (a) any complaint to which section 32(1) of the Gas Act 1986 (c. 44) applies which is referred to the Gas and Electricity Consumer Council before the appointed day; (b) any matter under investigation by the Gas and Electricity Consumer Council under section 33 of that Act immediately before the appointed day. (2) The functions of the Gas and Electricity Consumer Council under section 32 or 33 of the Gas Act 1986 are exercisable by the Council in relation to the complaint or matter, but as if in section 32(8) of that Act the reference to the Utilities Act 2000 (c. 27) or the Gas Act 1986 included a reference to this Act and to Part 9 of the Enterprise Act 2002 (c. 40). (3) Sub-paragraph (2) applies-- (a) notwithstanding the repeal of sections 32 and 33 of the Gas Act 1986 by this Act, and (b) whether or not the complaint is within section 11, 12 or 13, or the matter is within section 11. (4) "The appointed day" is the day on which section 30(1) comes into force. 2 (1) This paragraph applies to-- (a) any complaint to which section 46(1) of the Electricity Act 1989 (c. 29) applies which is referred to the Gas and Electricity Consumer Council before the appointed day; (b) any matter under investigation by the Gas and Electricity Consumer Council under section 46A of that Act immediately before the appointed day. (2) The functions of the Gas and Electricity Consumer Council under section 46 or 46A of the Electricity Act 1989 are exercisable by the Council in relation to the complaint or matter, but as if in section 46(8) of that Act the reference to the Utilities Act 2000 or the Electricity Act 1989 included a reference to this Act and Part 9 of the Enterprise Act 2002. (3) Sub-paragraph (2) applies-- (a) notwithstanding the repeal of sections 46 and 46A of the Electricity Act 1989 by this Act, and (b) whether or not the complaint is within section 11, 12 or 13, or the matter is within section 11. (4) "The appointed day" is the day on which section 30(1) comes into force. Annual reports of the Gas and Electricity Consumer Council3 (1) After the abolition of the Gas and Electricity Consumer Council under section 30(1), any duty of the Gas and Electricity Consumer Council to make an annual report, in relation to any financial year for which such a report has not been made, is to be discharged by the Council. (2) The period between the abolition of the Gas and Electricity Consumer Council and the end of the preceding financial year (if less than 12 months) is to be treated as its financial year for which the last annual report is required. (3) If that period is 9 months or longer the Council must make the last annual report as soon as practicable after the end of that period. (4) If that period is shorter than 9 months the last annual report must be made no later than the first report of the Council under section 7. (5) In this paragraph--
Complaints and investigations functions of Consumer Council for Postal Services4 (1) This paragraph applies to any matter which, immediately before the appointed day, is under investigation by the Consumer Council for Postal Services under-- (a) section 56(1) of the Postal Services Act 2000 (c. 26) (complaints referred to the Consumer Council for Postal Services), or (b) section 57 of that Act (power of that Council to investigate other matters). (2) The functions of the Consumer Council for Postal Services under section 56 or 57 of the Postal Services Act 2000 are exercisable by the Council in relation to the matter, and any agreement between the Consumer Council for Postal Services and the Commission under section 56(3) of that Act has effect as if agreed between the Council and the Commission. (3) Sub-paragraph (2) applies-- (a) notwithstanding the repeal of sections 56 and 57 of the Postal Services Act 2000 by this Act; (b) whether or not the matter is within section 11 or 16. (4) "The appointed day" is the day on which section 30(2) comes into force. Annual reports of the Consumer Council for Postal Services5 (1) After the abolition of the Consumer Council for Postal Services under section 30(2), any duty of the Consumer Council for Postal Services to make an annual report, in relation to any financial year for which such a report has not been made, is to be discharged by the Council. (2) The period between the abolition of the Consumer Council for Postal Services and the end of the preceding financial year (if less than 12 months) is to be treated as the financial year for which the last annual report is required. (3) If that period is 9 months or longer the Council must make the last annual report as soon as practicable after the end of that period. (4) If that period is shorter than 9 months the last annual report must be made no later than the first report of the Council under section 7. (5) In this paragraph--
Section 35 SCHEDULE 4 Transfer of property etc to CouncilPreliminary1 In this Schedule--
Contents of transfer schemes2 (1) The property, rights and liabilities that may be transferred by a transfer scheme include property, rights and liabilities that would not otherwise be capable of being transferred or assigned. (2) The transfers authorised by sub-paragraph (1) include transfers of interests and rights that are to take effect in accordance with the scheme as if there were-- (a) no such requirement to obtain a person's consent or concurrence, (b) no such liability in respect of a contravention of any other requirement, and (c) no such interference with any interest or right, as there would otherwise be by reason of a provision within sub-paragraph (3). (3) A provision is within this sub-paragraph to the extent that it has effect (whether under an enactment or agreement or otherwise) in relation to the terms on which the transferor is entitled or subject to anything to which the transfer relates. 3 A transfer scheme may define the property, rights and liabilities to be transferred by specifying them or describing them. 4 A transfer scheme may contain supplementary, incidental, transitional and consequential provision. Effect of transfers5 (1) On the day appointed by a transfer scheme the property, rights and liabilities which are the subject of the scheme are transferred to the Council in accordance with the provisions of the scheme. (2) Sub-paragraph (1) has effect in relation to property, rights or liabilities to which it applies in spite of any provision (of whatever nature) which would prevent or restrict the transfer of the property, rights or liabilities otherwise than by virtue of that sub-paragraph. 6 (1) So far as is appropriate in consequence of the transfer, anything done by the transferor for the purposes of or in connection with anything transferred which is in effect immediately before it is transferred is to be treated as if done by the Council. (2) A transfer does not affect the validity of anything done by or in relation to the transferor before the transfer takes effect. (3) There may be continued by or in relation to the Council anything (including legal proceedings) relating to anything transferred which is in the process of being done by or in relation to the transferor immediately before it is transferred. (4) So far as is appropriate in consequence of the transfer, the Council is substituted for the transferor in any agreement, instrument or other document relating to anything transferred. Staff7 The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246) apply to a transfer which relates to rights or liabilities under a contract of employment whether or not the transfer would, apart from this paragraph, be a relevant transfer for the purposes of those regulations. 8 Where an employee of the transferor becomes an employee of the Council by virtue of a transfer scheme-- (a) a period of employment with the transferor is to be treated as a period of employment with the Council, and (b) the transfer to the Council is not to be treated as a break in service. Chargeable gains: asset to be treated as disposed of without a gain or loss9 For the purposes of the Taxation of Chargeable Gains Act 1992 (c. 12), a transfer of an asset by a transfer scheme is to be treated as a disposal of that asset to the Council for a consideration of such amount as would secure that, on the disposal, neither a gain nor a loss accrues to the transferor. Continuity in relation to transfer of intangible assets10 (1) For the purposes of Schedule 29 to the Finance Act 2002 (c. 23)-- (a) a transfer by a transfer scheme of a chargeable intangible asset of the transferor is to be treated as a tax-neutral transfer, and (b) an intangible fixed asset which is an existing asset of the transferor at the time of the transfer is to be treated, on and after the transfer, as an existing asset in the hands of the Council. (2) Expressions used in this paragraph and in that Schedule have the same meanings in this paragraph as in that Schedule. Corporation Tax Acts11 So far as it relates to corporation tax, this Schedule is to be construed as one with the Corporation Tax Acts. Modification of transfer schemes after appointed day12 (1) If, after the day appointed by a transfer scheme, the transferor and the Council so agree in writing, the scheme shall for all purposes be deemed to have come into force on that day with such modifications as may be agreed. (2) An agreement under this paragraph may, in connection with giving effect to modifications to the scheme, include supplementary, incidental, transitional and consequential provision. Section 45 SCHEDULE 5 Information relating to compliance with complaints handling standards1 (1) The Gas Act 1986 (c. 44) is amended as follows. (2) In section 28 (orders for securing compliance with certain provisions), in the definition of "relevant requirement" in subsection (8), after "33D" insert ", 33DB". (3) After section 33DA insert-- " 33DB Information relating to complaints handling standards(1) This section applies in relation to standards prescribed by the Authority by regulations under section 43 of the Consumers, Estate Agents and Redress Act 2007 (standards for complaints handling) in relation to licence holders (or some of them). (2) The Authority must from time to time collect information with respect to the levels of compliance with the standards which those licence holders have achieved. (3) At such times as the Authority may direct, each of those licence holders must give the Authority such information as the Authority may direct with respect to the levels of compliance with the standards which the licence holder has achieved. " 2 (1) The Electricity Act 1989 (c. 29) is amended as follows. (2) In section 25 (orders for securing compliance), in the definition of "relevant requirement" in subsection (8), after "42A" insert ", 42AB". (3) After section 42AA insert-- " 42AB Information relating to complaints handling standards(1) This section applies in relation to standards prescribed by the Authority by regulations under section 43 of the Consumers, Estate Agents and Redress Act 2007 (standards for complaints handling) in relation to licence holders (or some of them). (2) The Authority must from time to time collect information with respect to the levels of compliance with the standards which those licence holders have achieved. (3) At such times as the Authority may direct, each of those licence holders must give the Authority such information as the Authority may direct with respect to the levels of compliance with the standards which the licence holder has achieved. " 3 (1) The Postal Services Act 2000 (c. 26) is amended as follows. (2) In section 22 (final orders), in the definition of "relevant requirement" in subsection (5) (as substituted by paragraph 3(2) of Schedule 2 and amended by section 52), after "or" at the end of paragraph (a) insert-- " (aa) an obligation imposed under section 61A, or " . (3) After section 61 insert-- " Information61A Information relating to complaints handling standards(1) This section applies in relation to standards prescribed by the Commission by regulations under section 43 of the Consumers, Estate Agents and Redress Act 2007 (standards for complaints handling) in relation to licence holders under Part 2 (or some of them). (2) The Commission must from time to time collect information with respect to the levels of compliance with the standards which those licence holders have achieved. (3) At such times as the Commission may direct, each of those licence holders must give the Commission such information as the Commission may direct with respect to the levels of compliance with the standards which the licence holder has achieved. " Section 53 SCHEDULE 6 Estate Agents' Redress Schemes1 The Estate Agents Act 1979 (c. 38) is amended as follows. 2 After section 23 insert-- " Redress schemes23A Redress schemes(1) The Secretary of State may by order require persons who engage in estate agency work in relation to residential property ("relevant estate agency work") to be members of an approved redress scheme for dealing with complaints in connection with that work. (2) An order may provide for the duty to apply-- (a) only to specified descriptions of persons who engage in estate agency work; and (b) in relation to any relevant estate agency work carried out by a person to whom the duty applies or only in relation to specified descriptions of work (which may be framed by reference to descriptions of residential property). (3) An order may also provide for the duty not to apply in relation to complaints of any specified description (which may be framed by reference to a description of person making a complaint). (4) In subsections (1) and (2)(a), the reference to persons who engage in estate agency work does not include a reference to persons who engage in that work in the course of their employment. (5) The power to make an order shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. (6) Before making an order the Secretary of State must be satisfied that all persons who are to be subject to the duty will be eligible to join a suitable approved redress scheme before the duty applies to them. For this purpose the Secretary of State may disregard persons who cannot lawfully engage in the relevant estate agency work to which the duty applies. (7) Nothing in this section prevents an approved redress scheme from providing-- (a) for membership to be open to persons who are not subject to the duty; (b) for the investigation and determination of any complaints in relation to which the duty does not apply, where the members concerned have voluntarily accepted the jurisdiction of the scheme over those complaints; (c) for the exclusion from investigation and determination under the scheme of any complaint in such cases or circumstances as may be specified in or determined under the scheme. (8) For the purposes of this section-- (a) a "redress scheme" is a scheme which provides for complaints against members of the scheme to be investigated and determined by an independent person ("the ombudsman"); (b) a redress scheme is "approved" if-- (i) it is for the time being approved by the OFT under Schedule 3; or (ii) it is administered by or on behalf of the Secretary of State and designated by him as an approved redress scheme for the purposes of this section; (c) a "complaint" is a complaint made by a person by virtue of his being or having been a seller or buyer of residential property; (d) "seller", in relation to residential property, means a person who claims that he is or may become interested in disposing of an interest in land in respect of that property (and includes a person who disposes of such an interest); (e) "buyer", in relation to residential property, means a person who claims that he is or may become interested in acquiring an interest in land in respect of that property (and includes a person who acquires such an interest). (9) The Secretary of State may not designate a scheme as an approved redress scheme for the purposes of this section unless the Secretary of State is satisfied that the scheme is one which could be approved by the OFT in accordance with paragraphs 2 to 5 of Schedule 3. (10) Schedule 3 (which makes further provision in connection with the approval of redress schemes etc.) shall have effect. (11) In this section--
23B Enforcement(1) If a duly authorised officer of an enforcement authority other than the OFT believes that a person has engaged (or is engaging) in estate agency work in relation to residential property in breach of the duty imposed by an order under section 23A(1) he may give a penalty charge notice to that person. (2) A penalty charge notice may not be given after the end of the period of six months beginning with the day (or in the case of a continuing breach the last day) on which the breach of duty was committed. (3) Schedule 4 (which makes further provision in connection with penalty charge notices) shall have effect. (4) An enforcement authority other than the OFT must notify the OFT if it believes that a person has engaged (or is engaging) in estate agency work in relation to residential property in breach of the duty imposed by an order under section 23A(1). 23C Meaning of residential property(1) For the purposes of sections 23A and 23B "residential property"-- (a) has the meaning given by subsection (2); but (b) does not include land of a description specified in an order made by the Secretary of State for the purposes of this section. (2) "Residential property" means any land that consists of or includes a building or part of a building-- (a) the whole or part of which is used as a dwelling or as more than one dwelling; or (b) that is (or is to be) offered for sale on the basis that the whole or part of it is suitable for such use or is intended to be so suitable by the time the seller disposes of his interest in it. (3) In subsection (2), the reference to a building or part of a building (so far as relating to paragraph (b) of that subsection) includes a reference to a building or part that is being or is to be constructed. (4) A description of land specified by order under subsection (1)(b) may be framed by reference to the purpose or purposes for which the land (or part of it) is or is intended to be used. (5) The power to make an order under subsection (1)(b) shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. " 3 After Schedule 2 insert-- Section 23A(10) " SCHEDULE 3 Redress SchemesApproval of redress schemes1 A redress scheme may be approved for the purposes of section 23A by the OFT acting in accordance with paragraphs 2 to 8. 2 (1) A scheme may not be approved unless the OFT considers that-- (a) the provisions of the scheme; and (b) the manner in which it will be operated (so far as can be judged from facts known to the authority); are satisfactory for the purposes of section 23A. (2) Without prejudice to the generality of sub-paragraph (1), a scheme must not be approved unless the OFT considers that it makes satisfactory provision about-- (a) the complaints which may be made under the scheme (which may include complaints about non-compliance with the provisions of a code of practice or other document); (b) the ombudsman's duties and powers in relation to the investigation and determination of complaints (which may include power to decide not to investigate or determine a particular complaint); (c) the redress which the ombudsman may require members to provide to complainants, which must include the types of redress specified in sub-paragraph (3); (d) the enforcement of any requirement to provide redress imposed on a member in accordance with the scheme. (3) The types of redress mentioned in sub-paragraph (2)(c) are-- (a) providing an apology or explanation; (b) paying compensation; and (c) taking such other actions in the interests of the complainant as the ombudsman may specify. 3 (1) In determining whether a scheme, or any provisions mentioned in paragraph 2(2), are satisfactory the OFT must have regard to-- (a) the interests of members of the scheme and of sellers and buyers of residential properties; and (b) such principles as-- (i) in the opinion of the OFT constitute generally accepted principles of best practice in relation to consumer redress schemes, and (ii) it is reasonable to regard as applicable to the scheme. (2) In considering the interests mentioned in sub-paragraph (1)(a), the OFT may have regard to the number of other redress schemes which are (or are likely to become) approved redress schemes. 4 The OFT must not approve a scheme unless it considers that the scheme makes satisfactory provision about the provision of information by the ombudsman or the scheme administrator to-- (a) persons exercising functions under other approved schemes; (b) persons exercising functions under other consumer redress schemes; and (c) the OFT or any other person exercising regulatory functions in relation to the activities of persons engaging in estate agency work. 5 The OFT must not approve a scheme if it considers that the scheme provides for membership to be revoked on any unfair grounds. Applications for approval to the OFT6 An application for approval by the OFT of a redress scheme must-- (a) be made in such manner as the OFT may determine; and (b) be accompanied by such information as the OFT may require. 7 Where the OFT is proposing to refuse an application for approval it must give the applicant a notice stating-- (a) that it is proposing to refuse the application; (b) the grounds for the proposed refusal; and (c) that representations about the proposed refusal may be made within such period of not less than 30 days as is specified in the notice. 8 If the OFT decides to refuse an application for approval, it must give the applicant a notice stating-- Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 -- Back --
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