AMENDMENTS TO HOUSING GRANTS, CONSTRUCTION AND REGENERATION ACT 1996 BROUGHT INTO FORCE

The long-awaited amendments to the Housing Grants, Construction and Regeneration Act 1996 (hereafter ‘the 1996 Act’), enacted in ss138 to 145 of the Local Democracy, Economic Development and Construction Act 2009 (hereafter ‘the 2009 Act’) came into force on 1 October 2011 in England and Wales and on 1 November 2011 in Scotland. The changes made to the construction adjudication scheme give to the Secretary of State a broad power to disapply the adjudication provisions, abolish the requirement that construction contracts be in writing, introduce a ‘slip rule’ to permit adjudicators to correct clerical errors in their decisions and give a limited right to adjudicators to allocate certain costs of adjudication. In relation to payment provisions the changes made are to introduce a new, two-stage notice provision, abolish the withholding notice and replace it with a notice of the payer’s intention to pay less than the notified sum, make some changes relating to the giving of notice to an insolvent contractor and widen the prohibition on pay-when-paid clauses to encompass pay-when-certified clauses. Consequential changes have been made to the Scheme for Construction Contracts for England and Wales (see, in particular, SI 2011/1715, SI 2011/2333) and similar changes are under consideration in Scotland.

Entry into force

These amendments have taken some time to come into force. The delay has given rise to a degree of difficulty. In particular, case law has moved on since the legislation was drafted and the relationship between the developing case law and the amendments which have now been (or are about to be) brought into force may not be a straightforward matter. A further point to note is that the amendments will come into effect at different times in England, Scotland and Wales (evidencing the complexities which devolution has on the potential to create new law). There is no obvious explanation for the choice of different dates in the different parts of the UK.