Property Services (Regulation) Act 2011

68.

Actions to be taken by inspector and Authority upon completion of investigation.

68.— (1) Subject to subsection (3), where an inspector has completed an investigation, the inspector shall, as soon as is practicable after having considered, in so far as they are relevant to the investigation, any information or records, books or accounts (whether kept in manual form or otherwise) or other documents provided to the inspector pursuant to any requirement under section 66 , any statement or admission made by any person pursuant to any requirement under that section, any submissions made and any evidence presented (whether at an oral hearing referred to in section 66(15) or otherwise)—

( a) prepare a draft of the investigation report, and

( b) give to the licensee to whom the investigation relates and, if the investigation arose in consequence of the receipt of a complaint, the complainant—

(i) a copy of the draft of the investigation report,

(ii) a copy of this section, and

(iii) a notice in writing stating that the licensee and the complainant (if any) may, not later than 30 days from the date on which the notice was respectively received by them, or such further period not exceeding 30 days as the inspector allows, each make submissions in writing to the inspector on the draft of the investigation report.

(2) Subject to subsection (3), an inspector who has complied with subsection (1) following the completion of an investigation shall, as soon as is practicable after—

( a) the expiration of the period referred to in subsection (1)(b)(iii), and

( b) having—

(i) considered the submissions (if any) referred to in subsection (1)(b)(iii) made before the expiration of that period on the draft of the investigation report concerned, and

(ii) made any revisions to the draft of the investigation report which, in the opinion of the inspector, are warranted following such consideration,

prepare the final form of the investigation report and submit it to the Authority with any such submissions annexed to the report.

(3) Where an inspector states, whether in a draft of the investigation report or in the final form of the investigation report, that he or she is satisfied that improper conduct by the licensee to whom the investigation relates has occurred or is occurring, the inspector shall not make any recommendation, or express any opinion, in the report as to the minor sanction or major sanction that he or she thinks ought to be imposed on the licensee in respect of such improper conduct in the event that the Authority is also satisfied that improper conduct by the licensee has occurred or is occurring.

(4) Subject to subsection (5), where the Authority has considered an investigation report (and any submissions annexed thereto) submitted to it pursuant to subsection (2), the Authority—

( a) if it is satisfied that improper conduct by the licensee to whom the investigation relates has occurred or is occurring, shall, subject to subsections (8) and (10) and section 69

(i) impose a minor sanction on the licensee, or

(ii) impose a major sanction on the licensee,

as it thinks fit in the circumstances of the case,

( b) if it is not satisfied that improper conduct by the licensee to whom the investigation relates has occurred or is occurring but is of the opinion that a further investigation of the licensee is warranted, shall cause the further investigation to be carried out pursuant to its powers under section 65(1) ,

( c) if it is not satisfied that improper conduct by the licensee to whom the investigation relates has occurred or is occurring and is not of the opinion that a further investigation of the licensee is warranted, and the investigation arose from a complaint, shall dismiss the complaint.

(5) Where the Authority has considered an investigation report (and any submissions annexed thereto) submitted to it pursuant to subsection (2), the Authority may, if it considers it proper to do so for the purposes of assisting it to make a decision under subsection (4), or for the purposes of observing fair procedures, for those purposes—

( a) conduct an oral hearing, or

( b) give to the licensee to whom the investigation concerned relates and, if the investigation arose in consequence of the receipt of a complaint, the complainant—

(i) a copy of the investigation report, and

(ii) a notice in writing stating that the licensee and the complainant (if any) may, not later than 30 days from the date on which the notice was respectively received by them, or such further period not exceeding 30 days as the Authority allows, each make submissions in writing to the Authority on the investigation report.

(6) Part 2 of Schedule 3 shall have effect for the purposes of an oral hearing referred to in subsection (5)(a).

(7) The Authority shall, as soon as is practicable after making a decision under subsection (4), give notice in writing of the decision and the reasons for the decision to the licensee to whom the investigation concerned relates and, if subsection (4)(a) applies in the case of that licensee, set out in that notice—

( a) the minor sanction or major sanction imposed on the licensee for the improper conduct specified in the notice in respect of which the Authority is satisfied as referred to in that subsection, and

( b) the reasons for the imposition of such minor sanction or major sanction, as the case may be.

(8) Where subsection (4)(a) applies in the case of a licensee, the Authority shall, in deciding the minor sanction or major sanction to be imposed on the licensee, take into consideration the matters referred to in section 73 .

(9) Where subsection (4) applies in the case of an investigation which arose from a complaint, the Authority shall give the complainant a copy of the notice under subsection (7) given or to be given to the licensee to whom the investigation relates at the same time as the notice is given to the licensee or as soon as is practicable thereafter.

(10) The Authority shall not under subsection (4)(a) impose a major sanction on a licensee if the only improper conduct by the licensee in respect of which the Authority is satisfied has occurred or is occurring is improper conduct which falls within paragraph (c) of the definition of “improper conduct” in section 2(1) .