This guest post has been updated with reference to government guidance available on 25 March 2020.
One of the key concerns of landlords and agents during the current situation is how to handle the inconsistency between government guidance to avoid contact and their statutory obligations to enter property to carry out safety checks, currently in relation to gas safety certificates, but soon in relation to electrical safety as well.
If a tenant will not allow access due to a fear of contracting novel coronavirus or is self-isolating with a reasonable belief that they have coronavirus such that access is not practical then a landlord or agent has real difficulty in fulfilling their obligations. In that circumstance, unless the government makes changes to the law in the Coronavirus Act, the landlord would potentially be in breach of their gas safety duties under the Gas Safety (Installation and Use) Regulations 1998 or their new electrical safety duties under the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 if they were not able to obtain a proper safety certificate relating to the gas or electrical installation.
Failure to Carry Out Gas Safety Checks
If the issue was a failure to obtain a gas safety certificate then the prosecuting body is the Health and Safety Executive. They have clear guidance on their website as to when they are likely to prosecute. This guidance states that they will not prosecute where a landlord has taken all reasonable steps to obtain access for a check. Normally this requires a series of attempts with evidence of notices left and letters. However, a modified version of this would apply now. If a tenant is self-isolating then a record should be made of that contact and a gas safety check arranged for when the tenant’s isolation period ends. If the tenant is not prepared to allow access then the position is exactly the same as it would be if any other tenant was not prepared to allow access. In that case the landlord and agent should show that they have made several efforts to arrange access, they should show that they have written to the tenant making clear that the check is in the tenant's interest and for their safety, and (in the current situation) they should make clear that any check will be done with due regard for government guidance and without the need for close contact between the engineer and the tenant. If the tenant will still not permit access, then the landlord and agent have done all that they reasonably can.
Landlords and agents should also bear in mind that there is now a much wider window of opportunity to carry out gas safety checks as they can now carry out those checks as much as two months early and not lose the benefit of the full twelve month original inspection. In other words, a landlord could carry out a gas safety check ten months after the previous one and then not carry out another check for fourteen months. They should therefore start the check process as early as possible and make full use of this additional time period.
The Gas Safe Register has a regularly updated page with guidance on gas checks during this period which should be consulted.
The new electrical safety regulations have a similar set of obligations, even though they are yet to come into force. In their case the enforcing body is the relevant local housing authority, although in this case they do not prosecute but in fact issue a civil penalty. However, they are not obliged to do so and should therefore consider the appropriateness of a penalty in each case. The MHCLG has yet to issue the appropriate guidance to local authorities as to when they should issue civil penalties in each case but it is likely to bear similarities to the civil penalty guidance for other housing offences. This guidance requires a local authority to consider whether it is in the public interest to issue a penalty. Just as with a gas safety prosecution it is not likely to be in the public interest to penalise a landlord who has done everything they reasonably can to access a property but is unable to do so as a result of the current health emergency.
Therefore agents and landlords should be acting now as they would do at any other time. They should make every effort to access a property to carry out safety checks. In doing so they should make clear to tenants that engineers will not come near them and will carry out their checks with minimal interference. If tenants will not permit access then several efforts should be made and recorded. If tenants are self-isolating or shielding then access should be deferred until such time as the isolation or shielding period is over.
Alternatively, the issue might be that contractors are unwilling to access properties to carry out checks. Government guidance is clear that that where a tenant is self-isolating then there is a risk in accessing their property. However, there appears to be no good reason to avoid a property where a tenant shows no signs of illness provided sensible precautions are taken to minimise contact. Recently updated government guidance is clear that where work is necessary in a person’s home, then tradespeople who do not show symptoms can carry it out. However, if a landlord or agent is having difficulty obtaining a contractor then they should show that they have tried several contractors and have made all reasonable efforts to have safety checks done.
This is an area in which a high degree of uncertainty exists. Over time, as the virus is better understood, some of this uncertainty is likely to reduce. In the meantime, landlords and agents should seek to carry out their management responsibilities as best they can and should maintain evidence of any situation in which they are prevented from doing so. Actions that can be reasonably delayed without a negative impact, such as non-urgent servicing work, should be delayed. Where contractors are accessing properties landlords and agents should ensure that they stay away from tenants, that they wash their hands before entering and after leaving the property, and that contact is kept to a minimum.
DISCLAIMER: This article is intended for information only. It does not constitute legal advice and the author and Fixflo do not accept liability based on this article. Please note that the situation is evolving rapidly and readers are advised to follow the latest government guidelines in their regions.