28. The Act of 2004 is amended by the insertion of the following Part after Part 7:

“Part 7A

Complaints, Investigations and Sanctions

Interpretation (Part 7A)

148R. In this Part—

‘authorised officer’ means a person appointed under section 164A to be an authorised officer;

‘complainant’ means a person who makes a complaint under section 148T;

‘decision maker’ means a person appointed under section 164A to be a decision maker;

‘decision notice’ means a notice given by the Board under section 148Y;

‘improper conduct’ in relation to a landlord, means conduct specified in Schedule 2;

‘investigation’ means an investigation under section 148X;

‘investigation report’ in relation to an investigation, means a report in writing, following the completion of the investigation by the authorised officer appointed under section 148U(1) to carry out the investigation;

‘records’ has the meaning assigned to it by section 148S(19);

‘sanction’ has the meaning assigned to it by section 148X(11).

Powers of authorised officer

148S. (1) For the purposes of carrying out an investigation, an authorised officer may—

(a) subject to subsections (12) and (13), at all reasonable times enter, inspect, examine and search any premises where he or she has reasonable grounds for believing that any activity in connection with the letting or tenancy of a dwelling is carried on,

(b) at such premises inspect and take copies or extracts from records relating to the activity referred to in paragraph (a) which he or she finds or with which he or she is provided in the course of his or her inspection,

(c) remove any such records from the premises and retain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under this Part,

(d) require any person at the premises or the owner or person in charge of the premises and any person employed there to give to him or her such assistance and information and to produce to him or her such records (and in the case of records in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s possession or control or within that person’s procurement, as he or she may reasonably require for the purposes of his or her functions under this Part,

(e) be accompanied by a member of the Garda Síochána if there is reasonable cause to apprehend any serious obstruction in the performance of any of the authorised officer’s functions under this subsection, and

(f) require a landlord to provide an explanation of a decision, course of action, system or practice or the nature or content of any records.

(2) A requirement under paragraph (d) or (f) of subsection (1) shall specify a period within which, or a date and time on which, the person the subject of the requirement is to comply with it.

(3) For the purposes of an investigation, an authorised officer—

(a) may require a person who, in the authorised officer’s opinion—

(i) possesses information that is relevant to the investigation, or

(ii) has any records within that person’s possession or control or within that person’s procurement as the authorised officer may reasonably require for the purposes of his or her functions under this Part,

to provide that information or those records, as the case may be, to the authorised officer, and

(b) where the authorised officer thinks fit, may require that person to attend before the authorised officer for the purpose of so providing that information or those records as the case may be.

(4) The person who is the subject of a requirement under subsection (3) shall comply with the requirement.

(5) A requirement under subsection (3) shall specify—

(a) a period within which, or a date and time on which, the person the subject of the requirement is to comply with the requirement, and

(b) as the authorised officer concerned thinks fit—

(i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the records concerned, or

(ii) the place to which the person shall send the information or the records concerned.

(6) A person required to attend before an authorised officer under subsection (3)(b)—

(a) is also required to answer fully and truthfully any question put to the person by the authorised officer, and

(b) if so required by the authorised officer, shall answer any such question under oath or affirmation.

(7) Where it appears to an authorised officer that a person has failed to comply or fully comply with a requirement under subsection (1), (3) or (6), the authorised officer may, on notice to that person and with the consent of the Board, apply in a summary manner to the District Court for an order under subsection (8).

(8) Where satisfied after hearing the application about the person’s failure to comply or fully comply with the requirement in question, the District Court may, subject to subsection (11), make an order requiring that person to comply or fully comply, as the case may be, with the requirement within a period specified by the Court.

(9) The administration of an oath referred to in subsection (6)(b) by an authorised officer is hereby authorised.

(10) Any statement or admission made by a person pursuant to a requirement under subsection (1), (3) or (6) is not admissible against that person in criminal proceedings other than criminal proceedings for an offence under subsection (16), and this shall be explained to the person in ordinary language by the authorised officer concerned.

(11) Nothing in this section shall be taken to compel the production by any person of any records which he or she would be exempt from producing in proceedings in a court on the ground of legal professional privilege.

(12) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling without a warrant issued under subsection (13) authorising the entry.

(13) A judge of the District Court, if satisfied on the sworn information of an authorised officer that—

(a) there are reasonable grounds for suspecting that any information or records, as the authorised officer may reasonably require for the purposes of his or her functions under this Part, is or are held on any premises or any part of any premises, and

(b) an authorised officer, in the performance of his or her functions under this subsection, has been prevented from entering the premises or any part thereof,

may issue a warrant authorising the authorised officer, accompanied if necessary by other persons, at any time or times within 30 days from the date of issue of the warrant and on production if so requested of the warrant, to enter, if need be by reasonable force, the premises or part of the premises concerned and perform all or any of the functions conferred on the authorised officer under this section.

(14) For the purposes of an investigation, an authorised officer may, if he or she thinks it proper to do so, of his or her own volition or at the request of the landlord to whom the investigation relates, conduct an oral hearing.

(15) Part 1 of Schedule 3 shall have effect for the purposes of an oral hearing referred to in subsection (14).

(16) Subject to subsection (10), a person who—

(a) withholds, destroys, conceals or refuses to provide any information or records required for the purposes of an investigation,

(b) fails or refuses to comply with any requirement of an authorised officer under this section, or

(c) otherwise obstructs or hinders an authorised officer in the performance of functions imposed under this Part,

is guilty of an offence and liable—

(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.

(17) An application under subsection (7) shall be made to a judge of the District Court for the time being assigned to the District Court District within which the person in respect of whom the application is made resides or carries on any profession, trade or business.

(18) An application for a warrant under subsection (13) shall be made to a judge of the District Court for the time being assigned to the District Court District within which the premises in respect of which the application is made is situated.

(19) In this section ‘records’ includes books, accounts or other documents or any written or printed material or copies thereof, in any form including material created, stored, maintained or preserved by means of any mechanical or electronic device whether or not created, stored, maintained or preserved in non-legible form.

Complaint

148T. (1) A person (in this section referred to as a ‘complainant’) may make a complaint in writing to the Board alleging that improper conduct by a landlord has occurred or is occurring.

(2) Where the Board receives a complaint, it shall cause an investigation of the matter the subject of the complaint to be carried out unless, following the making of such inquiries as it thinks fit, the Board is satisfied that—

(a) insufficient information is provided with the complaint to enable the Board to form a view whether the complaint should be investigated,

(b) the complaint does not relate to improper conduct,

(c) the complaint is not made in good faith,

(d) the complaint is frivolous or vexatious or without substance or foundation, or

(e) the complaint should be referred to the Board for resolution under Part 6.

(3) Where the Board decides that a complaint falls within paragraph (a), (b), (c), (d) or (e) of subsection (2), it shall give notice in writing to the complainant and the landlord of the decision and the reasons for the decision.

(4) Where a complaint is withdrawn by a complainant before the decision maker has made a decision under section 148X(4) or (5), the Board may proceed as if the complaint had not been withdrawn if it is satisfied that there is good and sufficient reason for so doing.

(5) Where, pursuant to subsection (4), the Board proceeds as if a complaint had not been withdrawn, the investigation concerned shall thereupon be treated as an investigation initiated by the Board, and other provisions of this Part shall be construed accordingly.

Board to appoint authorised officer and decision maker

148U. (1) Subject to section 148T(2) and (4) the Board shall, following receipt of a complaint and may, of its own volition, cause an investigation to be carried out and decided upon under this Part and for that purpose shall appoint an authorised officer and a decision maker.

(2) The Board may appoint more than one authorised officer to carry out an investigation but, in any such case, the investigation report concerned shall be prepared jointly by the authorised officers so appointed and the other provisions of this Part shall, with all necessary modifications, be construed accordingly.

(3) The terms of appointment of an authorised officer may define the scope of the investigation to be carried out by the authorised officer, whether as respects the matters or the period to which it is to extend or otherwise, and, in particular, may limit the investigation to matters connected with particular circumstances.

Notice of investigation

148V. (1) The authorised officer appointed by the Board under section 148U shall, subject to subsection (2), as soon as is practicable after being so appointed—

(a) if the investigation arises following receipt of a complaint by the Board—

(i) give notice in writing to the landlord in relation to whose improper conduct the complaint relates of the receipt of the complaint and setting out particulars of the complaint,

(ii) give the landlord copies of any documents relevant to the investigation, and

(iii) without prejudice to the generality of section 148S, afford to the landlord an opportunity to respond within 21 days from the date on which the landlord received the notice referred to in subparagraph (i), or such further period not exceeding 21 days as the authorised officer allows, to the complaint,

(b) if the investigation arises on the volition of the Board—

(i) give notice in writing to the landlord concerned of the matters to which the investigation relates,

(ii) give the landlord copies of any documents relevant to the investigation, and

(iii) without prejudice to the generality of section 148S, afford the landlord an opportunity to respond, within 21 days from the date on which the landlord received the notice referred to in subparagraph (i), or such further period not exceeding 21 days as the authorised officer allows, to the matter to which the investigation relates.

(2) The notice under paragraph (a) or (b) of subsection (1) shall advise the landlord that he or she may acknowledge a contravention under section 148W.

(3) Where an investigation arises following receipt of a complaint by the Board, the authorised officer appointed to carry out the investigation—

(a) shall, as soon as is practicable, give the complainant a copy of the notice referred to in subsection (1)(a)(i) given to the landlord in relation to whose improper conduct the complaint relates, and

(b) shall make reasonable efforts to ensure that the complainant is kept informed of progress on the investigation.

Acknowledgment of contravention

148W. (1) A landlord may, within 21 days of receipt of a notice under section 148V(1), acknowledge to the authorised officer that improper conduct by the landlord has occurred or is occurring.

(2) On receipt of an acknowledgment by the landlord under subsection (1) the authorised officer shall submit a copy of the notice to the landlord under paragraph (a) or (b) of section 148V(1), together with the acknowledgment of the landlord to the decision maker appointed by the Board under section 148U.

(3) On receipt of the documents and information under subsection (2) the decision maker shall determine, in accordance with this Part, what if any sanction shall be imposed on the landlord.

Investigation report and decision

148X. (1) Subject to subsection (3), where an authorised officer has completed an investigation, the authorised officer shall, as soon as is practicable after having considered, in so far as they are relevant to the investigation, any information or records provided to the authorised officer pursuant to any requirement under section 148S, 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 148S(14) or otherwise)—

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

(b) give to the landlord to whom the investigation relates and, if the investigation arose following 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 landlord and complainant (if any) may, not later than 21 days from the date on which the notice was respectively received by them, or such further period not exceeding 21 days as the authorised officer allows, each make submissions in writing to the authorised officer on the draft of the investigation report.

(2) Subject to subsection (3), an authorised officer who has complied with subsection (1) 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 revision to the draft of the investigation report which, in the opinion of the authorised officer, is warranted following such consideration,

prepare the final form of the investigation report and submit it to the decision maker appointed by the Board under section 148U with any such submissions annexed to the report.

(3) Where an authorised officer 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 landlord has occurred or is occurring, the authorised officer shall not make any recommendation, or express any opinion, in the report as to the sanction that he or she thinks ought to be imposed on the landlord in respect of such improper conduct in the event that the decision maker is also satisfied that improper conduct by the landlord has occurred or is occurring.

(4) Subject to subsection (6), where the decision maker has considered an investigation report (and any submissions annexed thereto) submitted to him or her under subsection (2), he or she shall decide to do one of the following:

(a) if he or she is satisfied that improper conduct by the landlord has occurred or is occurring, may, subject to subsection (9) and section 148Z impose a sanction on the landlord as he or she thinks fit in the circumstances of the case;

(b) if he or she is not satisfied that improper conduct by the landlord has occurred or is occurring but is of the opinion that a further investigation of the landlord is warranted, shall direct the Board to cause a further investigation on the matters to which, in the opinion of the decision maker the further investigation should relate;

(c) if he or she is not satisfied that improper conduct by the landlord has occurred or is occurring and is not of the opinion that a further investigation of the landlord is warranted, and the investigation arose—

(i) following the receipt of a complaint by the Board, shall dismiss the complaint,

(ii) on the volition of the Board, shall decide that no further action under this Part is warranted.

(5) Subject to subsection (7), where the decision maker has considered an acknowledgment by a landlord under section 148W(1) submitted to him or her under section 148W(2) he or she may decide, subject to subsection (9) and section 148Z, to impose a sanction on the landlord as he or she thinks fit in the circumstances of the case.

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

(a) conduct an oral hearing and give to the landlord and, if the investigation arose following receipt of a complaint, the complainant—

(i) a copy of the investigation report (and any submissions annexed thereto), and

(ii) a notice in writing stating that the landlord and complainant may, not later than 14 days from the date on which the notice was respectively received by them, or such further period not exceeding 14 days as the decision maker allows, each make submissions in writing to the decision maker on the investigation report,

or

(b) give to the landlord and, if the investigation arose following receipt of a complaint, the complainant a copy of the investigation report and the notice referred to in paragraph (a)(ii).

(7) Where the decision maker has considered an acknowledgment under section 148W(1) submitted to him or her under section 148W(2) the decision maker may, if he or she considers it proper to do so for the purposes of assisting him or her to make a decision under subsection (5) or for the purposes of observing fair procedures—

(a) conduct an oral hearing and give to the landlord and, if the investigation arose following receipt of a complaint, the complainant—

(i) a copy of the acknowledgment by the landlord, and

(ii) a notice in writing stating that the landlord and complainant may, not later than 14 days from the date on which the notice was respectively received by them, or such further period not exceeding 14 days as the decision maker allows, each make submissions in writing to the decision maker on the acknowledgment by the landlord under section 148W(1),

or

(b) give to the landlord and, if the investigation arose following receipt of a complaint, the complainant a copy of the acknowledgement by the landlord and the notice referred to in paragraph (a)(ii).

(8) Part 2 of Schedule 3 shall have effect for the purposes of an oral hearing referred to in subsection (6)(a) or (7)(a).

(9) Where subsection (4)(a) or (5) applies, the decision maker shall in deciding the sanction to be imposed on the landlord take into consideration the matters referred to in section 148AD.

(10) The decision maker shall, as soon as practicable after making a decision under subsection (4) or (5), give notice in writing of the decision and the reasons for it to the Board.

(11) In this section, ‘sanction’ in relation to improper conduct, means one, more than one, or all of the following:

(a) a direction in writing to the landlord to pay to the Board a sum specified in the direction not exceeding €15,000, by way of financial penalty for the improper conduct by the landlord specified in the direction;

(b) a direction in writing to the landlord to pay to the Board a sum specified in the direction not exceeding €15,000, being all or part of the costs incurred by the Board in investigating the matter to which the direction relates;

(c) the giving of a caution in writing to the landlord.

Receipt of decision by Board

148Y. (1) On receipt of the notice of the decision under section 148X(10) the Board shall prepare a written record of it (in this section referred to as a ‘decision notice’) and issue it to the landlord.

(2) If the decision maker has made a decision to impose a sanction under subsection (4)(a) or (5) of section 148X the decision notice shall set out—

(a) the sanction imposed on the landlord for the improper conduct by the landlord in respect of which the decision maker is satisfied under subsection (4)(a) or (5) of section 148X, and

(b) the reasons for the imposition of the sanction as the case may be.

(3) If the decision maker has given a direction to the Board under section 148X(4)(b) the Board shall cause a further investigation to be carried out under section 148V(1).

(4) The decision notice under subsection (2) shall inform the landlord when, subject to section 148Z, the decision under subsection (4)(a) or (5) of section 148X shall become binding.

(5) Where the decision of the decision maker under section 148X(4) or 148X(5) relates to an investigation which arose following receipt of a complaint by the Board, the Board shall give the complainant a copy of the decision notice given or to be given to the landlord at the same time as the notice is given to the landlord or as soon as practicable thereafter.

Decision and requirement of confirmation

148Z. (1) The landlord has a right to appeal the decision to impose a sanction under subsection (4)(a) or (5) of section 148X in accordance with section 148AA.

(2) The decision to impose a sanction under subsection (4)(a) or (5) of section 148X shall not take effect unless it is confirmed by the Circuit Court on appeal under section 148AA, or under section 148AB.

Appeal to Circuit Court against decision to impose sanction

148AA. (1) A landlord the subject of a decision under subsection (4)(a) or (5) of section 148X by the decision maker to impose a sanction on the landlord may, not later than 21 days from the giving by the Board to the landlord of the decision notice, appeal to the Circuit Court against the decision.

(2) The Circuit Court may, on the hearing of an appeal under subsection (1) by a landlord, consider any evidence adduced or argument made, whether or not adduced or made to an authorised officer or the decision maker.

(3) Subject to subsection (4), the Circuit Court may, on the hearing of an appeal under subsection (1) by a landlord—

(a) either—

(i) confirm the decision the subject of the appeal,

(ii) set aside the decision the subject of the appeal, or

(iii) set aside that decision and replace it with such other decision as the Court considers appropriate, which may be a decision—

(I) to impose a different sanction on the landlord, or

(II) to impose no sanction on the landlord,

and

(b) make such order as to costs as it thinks fit in respect of the appeal.

(4) The Circuit Court shall, for the purposes of subparagraph (i) or (iii)(I) of subsection (3)(a), take into consideration the matters referred to in section 148AD.

(5) An appeal under subsection (1) shall be brought before a judge of the Circuit Court for the time being assigned to the Circuit in which the appellant resides or carries on any profession, trade or business.

Application to Circuit Court to confirm decision to impose sanction

148AB. (1) Where a landlord does not, within the period allowed under section 148AA(1), appeal to the Circuit Court against a decision under subsection (4)(a) or (5) of section 148X by the decision maker to impose a sanction on the landlord, the Board shall, as soon as is practicable after the expiration of that period and on notice to the landlord, make an application in a summary manner to the Circuit Court for confirmation of the decision.

(2) The Circuit Court shall, on the hearing of an application under subsection (1), confirm the decision under subsection (4)(a) or (5) of section 148X the subject of the application unless the Court considers that there is good reason not to do so.

(3) An application under subsection (1) shall be made to a judge of the Circuit Court for the time being assigned to the Circuit in which the landlord to whom the decision concerned applies resides or carries on any profession, trade or business.

Provisions supplementary to sections 148AA and 148AB

148AC. (1) The decision of the Circuit Court on an appeal under section 148AA or an application under section 148AB is final except that the Board or the landlord the subject of the decision may, by leave of the Circuit Court, appeal against the decision to the High Court on a point of law.

(2) Where the Circuit Court confirms or gives a decision under section 148AA(3) or 148AB(2), the Board shall, as soon as is practicable after the decision is confirmed or given, as the case may be, give notice in writing of the decision to the landlord.

(3) The Board may recover, as a simple contract debt in any court of competent jurisdiction, from the person by whom it is payable any amount due and owing to the Board pursuant to a decision confirmed or given under section 148AA(3) or 148AB(2) by the Circuit Court.

(4) All payments made to the Board of any amount due to the Board pursuant to a decision confirmed or given under section 148AA(3) or 148AB(2) by the Circuit Court shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Public Expenditure and Reform may direct.

(5) Where an investigation arose following receipt of a complaint by the Board, the Board shall give to the complainant a copy of a notice given or to be given under subsection (2) to a landlord at the same time as the notice is given to the landlord or as soon as is practicable thereafter.

Matters to be considered in determining nature of sanction

148AD. The Circuit Court or the decision maker, as appropriate, in considering the sanction (if any) to be imposed on a landlord pursuant to subsection (4)(a) or (5) of section 148X or confirmed or given under section 148AA(3) or 148AB(2), shall take into account the circumstances of the improper conduct concerned (including the factors occasioning it) and, without prejudice to the generality of the foregoing, may have regard to—

(a) the need to ensure that any sanction imposed—

(i) is appropriate and proportionate to the improper conduct,

(ii) if applicable, will act as a sufficient incentive to ensure that any like improper conduct will not occur in the future, and

(iii) if applicable, will act in the public interest to encourage compliance with this Act,

(b) the seriousness of the improper conduct,

(c) if the landlord has, under section 148W(1), acknowledged the improper conduct,

(d) the extent of any failure by the landlord to co-operate with the investigation concerned of the improper conduct by the landlord,

(e) any explanation by the landlord for the improper conduct or failure to co-operate with the investigation concerned,

(f) any gain (financial or otherwise) made by the landlord or by any person in which the landlord has a financial interest as a consequence of the improper conduct,

(g) the amount of any loss suffered or costs incurred as a result of the improper conduct and any steps taken by the landlord to remediate the loss suffered or costs incurred,

(h) the duration of the improper conduct,

(i) if applicable, a re-occurrence of the improper conduct by the landlord,

(j) if applicable, the continuation of the improper conduct after the landlord was notified of the investigation concerned,

(k) if applicable, the extent and timeliness of any steps taken to end the improper conduct and any steps taken for remedying the consequences of the improper conduct, and

(l) whether a sanction has previously been imposed under this Part on the landlord on foot of a similar occurrence of improper conduct.

Publication of sanctions

148AE. The Board shall publish particulars, in such form and manner and for such period as it thinks fit of any imposition of a sanction on a landlord under section 148AA(3) or 148AB(2).

Procedural rules

148AF. (1) The procedure to be followed under this Part in relation to an investigation shall, subject to this Part, be such as shall be determined by the Board by rules made by it with the consent of the Minister.

(2) Without prejudice to the generality of subsection (1), rules under this section may—

(a) specify any forms to be used under this Part by a complainant, landlord, authorised officer or decision maker, and

(b) specify the period within which, in relation to a complaint the Board shall appoint an authorised officer or decision maker under section 148U.

(3) Subject to this Part and rules under this section, the procedure for carrying out an investigation by an authorised officer or making a decision by a decision maker shall be such as the authorised officer or decision maker considers appropriate in all the circumstances of the case.

(4) The authorised officer or decision maker shall perform his or her functions without undue formality where that is consistent with the due performance of those functions.

Relationship between investigation and criminal proceedings

148AG. (1) If a sanction is imposed on a landlord under section 148AA(3) or 148AB(2) and the improper conduct in respect of which the sanction is imposed is an offence under this Act, the landlord is not liable to criminal proceedings for the offence in respect of the improper conduct concerned.

(2) If criminal proceedings have been or are being brought against a landlord and the offence in respect of which the proceedings have been or are being brought is improper conduct, a sanction may not be imposed on the landlord under section 148AA(3) or 148AB(2) in respect of the offence concerned.

(3) An acknowledgment by a landlord under section 148W(1) is not admissible against the landlord in criminal proceedings other than criminal proceedings for an offence under section 148S(16).”.