This week (17-23 September) is national Gas Safety Week 2018 and Bevan Brittan is reminding social landlords (including housing associations and stock-owning local authorities) that failure to comply with gas and other safety standards can result in tough sanctions by the social housing regulator.
Under the Gas Safety (Installation and Use) Regulations 1998, all landlords are required to carry out annual safety checks on gas appliances and flues. A failure to ensure that checks are timely represents a ‘serious detriment’ – and recently a number of associations have received regulatory downgrades.
Regulatory downgrades can affect your ability to borrow and invest, and negatively impact on your reputation with your tenants, partners and other stakeholders.
Gas safety remains the most frequent breach of the 'serious detriment' test. The law says that all gas appliances must be checked every 12 months – which represents a huge task across the country’s social housing stock. It is a breach of the Regulations not to undertake the check annually, and a breach will constitute an offence if all reasonable steps haven’t been taken by the landlord to undertake the check.
Bevan Brittan has identified key points for landlords to consider:
- Access – to undertake the annual check, access to each tenant's flat is required. Where access is not provided or is refused, a County Court injunction is the usual remedy (although local authorities have alternative powers in the Magistrates Court). Court closures are putting strain on the courts' ability to list cases quickly, and therefore landlords need to ensure they commence the legal process sufficiently early.
- Other barriers to carrying out annual checks – a failure to give access is not the only barrier to compliance, and social landlords should be alive to other problems that may arise, and plan ahead for them. What if the tenant lacks the mental capacity to comply with an injunction? What if the supply has been cut off by the utility company? What if the supply is metered and there is debt on the meter? Does your standard injunction order permit you to force entry if the tenant refuses access in breach of the injunction, without the need to return to court? What if the tenant is not occupying the property and cannot be traced?
Landlords are recommended to consider and plan for these potential problems in advance – forewarned is forearmed!
- MOT – landlords should ensure their staff are aware of the new 'MOT' procedure for gas safety checking, which was introduced in April 2018 as an amendment to the Regulations. The new procedure introduces greater flexibility over when annual checks are undertaken, and allows landlords to take positive steps to align annual checking dates in multi-occupied buildings for efficiency purposes. However, it is important that the new procedure is followed correctly and the quid pro quo of the new ability to carry out the annual check in the last 2 months of the current certificate is likely to be that there will be less regulatory sympathy in circumstances where a landlord fails to achieve statutory compliance.
- Policy and Procedure – no matter how robust a policy or process is, it offers no comfort to the Board if the day to day implementation of it is flawed (which often happens simply because day to day practice has not been reviewed sufficiently recently). Landlords are therefore urged to ensure that their gas access policies and procedures are up to date and compliant with the legislation.
- Record Keeping – some associations have an ‘ad hoc’ approach to record keeping, and need to have effective systems, up-to-date gas inspection records and robust paper trails in place. Often, annual gas safety checking is outsourced to an external company and where that is the case, landlords need to have robust monitoring and reporting mechanisms in place to ensure that the contractor's work is properly overseen as the landlord will be liable for the acts or omissions of the contractor.
- Risk and Regulation – given the importance of ensuring compliance with gas safety legislation, social landlords should consider whether oversight and scrutiny of their procedures and processes sits with the right part of the business. Increasingly, we are seeing day to day responsibility being transferred from technical/maintenance teams across to the legal and governance function which is consistent with the heightened importance being given to gas safety compliance in the housing sector.
If you would like to discuss gas safety, please contact our Housing Management Team
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