Consultation outcome

Draft guidance note 4: Sections 218A-D – Performance improvement plans (enforcement power)

Updated 29 February 2024

Applies to England

	Applicable
PRP (For profit)	yes
PRP (Not for profit)	yes
PRP (Registered charity)	yes
Local authority	yes

Type of power: enforcement power  

The power 

1 - This power enables the regulator to require a registered provider to submit a performance improvement plan for approval by the regulator to address identified issues.

When the regulator will use this power 

2 - Section 218A(1) of the Act sets out the grounds under which the regulator can use this power. These grounds are: 

• where the registered provider has failed to meet a standard under sections 193, 194, 194A or 194C of the Act
• where there is a risk that, if no action is taken by the regulator or the registered provider, the registered provider will fail to meet a standard under section 193, 194, 194A or 194C of the Act 
• where the registered provider has failed to comply with directions or a request relating to performance information under section 198C of the Act  
• where the interests of the social housing tenants of the registered provider require protection; or  
• where the registered provider has given a voluntary undertaking under section 125 of the Act and failed to comply with it.

Process for using the power 

3 - If the regulator is satisfied that one or more of the grounds as set out in section 218A(1) of the Act apply, as set out at 218A(2) of the Act, the regulator will serve a performance improvement plan notice (‘PIP notice’) on the registered provider which will: 

• specify the ground(s) on which the PIP notice is being given;  
• identify the issues; 
• require the registered provider to prepare and submit a performance improvement plan setting out the action the registered provider will take to address the issues identified by a particular date
• set requirements in relation to the publication of the performance improvement plan
• explain that the registered provider has a statutory right of appeal to the High Court
• explain that the regulator can either approve the performance improvement plan or reject it, and set out the registered provider’s duties in connection with an approved performance improvement plan
• explain that the regulator may withdraw the PIP notice by giving further notice to the registered provider
• explain that the regulator can cancel a performance improvement plan which it has approved and the effects of this 
• explain that should a registered provider fail to comply with the PIP notice that the regulator will consider exercising another power.  

4 - Once a performance improvement plan is submitted, the regulator will consider it, and either approve or reject the performance improvement plan. If rejected, the regulator must give its reasons for doing so and this will be considered as a failure to comply with the PIP notice. 

5 - Where the performance improvement plan is approved, the registered provider has duties under section 218C(4) to: 

• implement the performance improvement plan
• publish the performance improvement plan (in the manner directed by the regulator); and 
• provide a copy of the performance improvement plan to tenants upon written request.

Appeal process 

6 - There is a statutory right of appeal to the High Court, which must be brought within the period of 28 days beginning with the day on which the registered provider is given the PIP notice. 

7 - The requirement to prepare and submit a performance improvement plan is suspended during the appeal period as defined in section 218D(4) of the Act. 

8 - Where the performance improvement plan has been approved by the regulator, an appeal does not suspend the provider’s duty to publish and implement the performance improvement plan, or provide a copy of the performance improvement plan to tenants.