Coronavirus – landlord's obligations to carry out annual gas safety inspections
24 March 2020
In these unprecedented times we have advised a number of landlords about their obligations to tenants and particularly in respect of the obligation on all residential landlords to carry out annual gas safety inspections in accordance with the Gas Safety (Installation and Use) Regulations 1998 when we should all be social distancing.
Government guidance, understandably, changes by the day. The draft Coronavirus bill aimed at changing existing legislation in order to give public bodies the tools and powers needed to carry out an effective response to this emergency has, at the time of writing, not been published.
However, it is unlikely that the bill will deal specifically with Gas Safety, but a recent government briefing note states that parts of the bill are aimed at ‘Easing the burden on frontline staff, both within the NHS and beyond’. It may therefore be that there will be some general relaxation to reduce the number of admin tasks, allowing key workers to perform more tasks remotely and with less paperwork.
However, as the law currently stands, landlords must, in accordance with Regulation 36 of the Gas Safety (Installation and Use) Regulations - maintain in a safe condition any relevant gas fitting and any flue and ensure that each appliance and flue is checked for safety every 12 months.
Regulation 39 – provides an exception as to liability and states that:
No person shall be guilty of an offence by reason of contravention of regulation …. 36 of these Regulations in any case in which he can show that he took all reasonable steps to prevent that contravention.
Health and Safety Executive
Previous guidance issued by the HSE states that landlords should “take all ‘reasonable steps’ to ensure this work [maintenance and safety checks] is carried out and this may involve giving written notice to a tenant requesting access and explaining the reason”.
In the circumstances, so long as a landlord takes all reasonable steps to carry out its obligations contained in Regulation 36 it is unlikely that the HSE would prosecute and, in the event that it did prosecute, landlords would have a defence if they have taken all reasonable steps.
The HSE guidance also suggests keeping a record of any action in case the tenant refuses access, to demonstrate what actions have been taken. Where a tenant does not cooperate, the guidance says the landlord should consider proper action through the courts under the terms of the tenancy agreement to gain access to undertake the safety check.
Landlords should therefore continue to take all reasonable steps and actions to carry out their statutory obligations. If, however they are prevented from doing so as a result of the Coronavirus it is likely that they would have a defence to any prosecution.
The Regulator of Social Housing
Social landlords have further obligations to the Regulator of Social Housing and must comply with various ‘Standards’ issued by the regulator which require social landlords to comply with the law (including carrying out gas safety inspections) and ensure properties are safe and fit for occupation by tenants. Where social landlords fail to comply with the Standards, the Regulator can take action against them and the Regulator has in the past reached findings of serious detriment where social landlords have failed to comply with their obligations. The regulator does however take into account "the materiality of the issues, namely how many tenants have been affected and for how long and whether they were systemic in nature."
The Regulator has, in response to the current unprecedented situation, issued a statement on its website that:
“We have paused our programme of In-Depth Assessments of registered providers. This means that for the time being we are not starting any new IDAs. For those IDAs that are underway we are in contact with providers to either complete the IDA online or to defer. We will keep the position under review.
Registered providers are reminded that they are expected to communicate in a timely manner with the regulator on material issues that relate to non-compliance or potential non-compliance with the regulatory standards. As ever, our regulatory approach remains proportionate and we will take account of the circumstances, including those arising from the impact of coronavirus, in considering our response to non-compliance or potential non-compliance with the standards.”
It would appear therefore that where non-compliance with the Gas Safety Regs is a direct result of the Coronavirus the Regulator will take that into account and their response will be proportionate.
In the circumstances, landlord should keep in contact with tenants, document and retain (record keeping is key) any reason why they have been unable to carry out the annual gas safety inspection. If tenants are self-isolating, landlords should ask them to confirm that in writing (email/text).