The new Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 came into force on the 1 June 2020. The Regulations require checks to be carried out on all electrical installations every 5 years with the landlord being required to provide a copy of the electrical safety report to the tenants and also the local authority if required to do so.
The Regulations apply to all new specified tenancies from the 1 July 2020 and to all existing specified tenancies from the 1 April 2021. There is therefore a “window” for landlords with existing specified tenancies to get the checks done in readiness for the 1 April 2021 deadline.
What constitutes a “new tenancy”?
Rather bizarrely a new specified tenancy is defined by the Regulations as any tenancy created after 1 June 2020 with the obligation to carry out the check coming into force from the 1 July 2020. Therefore any landlords who granted any new tenancies from 1 June 2020 will now have to undertake the checks.
If a tenancy rolls over after the fixed term ends then depending on what type of periodic tenancy it is will depend on whether it is caught by the Regulations.
If the tenancy agreement specifies the tenancy will be periodic after the fixed term ends, then that forms part of the original tenancy and no new tenancy is created. This is because it becomes a contractual periodic tenancy.
If the tenancy becomes a statutory periodic tenancy after the fixed term ends i.e. under s5 Housing Act 1988, then this is classed as a new tenancy.
Landlords should therefore carefully check their tenancy agreements to see which option arises after the end of the fixed term. For any tenancy that becomes a statutory periodic tenancy between July 2020 and April 2021 then the rental property will need to be inspected and tested and a report produced to comply with these Regulations. This should be done at the point the tenancy becomes a statutory periodic tenancy.
Who do the Regulations apply to?
If a person has been granted a right to occupy a property as their only or main home then the Regulations apply and so these Regulations cover assured shorthold tenancies and licences to occupy. There are some exceptions: private registered providers of social housing, shared accommodation with the landlord or the landlord’s family, long leases of 7 years or more, student halls of residence, hostels and refuges, care homes, hospitals and hospices and other accommodation providing healthcare.
If the landlord has a house in multiple occupation “HMO” (3 people not comprising one household) with the tenants occupying the property as their main home and paying a rent then the Regulations apply.
If a landlord has a large HMO (5 or more people not comprising one household) the Housing Act 2004 has been amended by the Regulations to insert a new mandatory condition in the HMO licences, meaning that landlords now have to ensure the electrical installations are safe to use and in proper working order.
How does a landlord choose a qualified and competent person to carry out the checks?
The landlord should check with their chosen contractor that they are a member of a competent scheme (similar to how a landlord can find a suitable gas engineer to carry out the annual gas safety checks), or alternatively they should require the contractor to sign a checklist certifying that they have the competence to carry out the checks. A contractor can be found on the “Registered Competent Person Electrical” website.
What has to be checked?
The contractor must ensure that the installations and standards in the rental property meet the 18th Edition of the Wiring Regulations to British Standard 7671. Items to be tested include all fixed electrical parts of a property such as wiring, plug sockets and light fittings. It will also include fuse boxes and any permanent connected equipment such as showers and extractor fans.
The Regulations do NOT cover things like cookers, fridge freezers, TVs as they only cover “fixed” installations. However, landlords are still advised carry out regular PAT testing on any electrical items in the rental property and to supply tenants with a copy of any inspection records as this is a matter of good practice for landlords.
If the rental property is a new build, or it has been re-wired, then a landlord is required to have an Electrical Inspection Certificate (EIC) and copies should be provided to the tenant and again, the local authority if required. The landlord is then not required to carry out further testing until 5 years after the EIC has been issued.
Landlords should retain copies of the reports with all their other tenancy documentation. Again this is good practice if it is required to be produced at any later stage.
What if remedial works are flagged in the report?
If the inspection flags up remedial works to be carried out then the landlord has to do this within 28 days or any shorter period specified in the report and is then provide an up-dated report to the tenant (and the local authority if required) to show that the work has been completed. If the landlord refuses to carry out the remedial work then the local authority can serve a remedial notice on the landlord to force them to do the works and if the landlord still refuses to do the works the local authority may carry out the works and recover the money spent from the landlord. The landlord does have a right of appeal against the requirement to recover costs by the local authority.
If works are shown to be required but the tenant refuses to allow the landlord access to do them or the landlord cannot find a suitable competent person then provided a landlord can show that they have taken all reasonable steps to comply then they will not be found to be in breach of their obligations. A landlord is recommended to keep copies of all correspondence, emails or a log of telephone calls made to show the steps taken by them.
What are “urgent works”?
If the inspection report indicates that urgent remedial works are to be carried out and the landlord has not carried out the work in the time specified, then the local authority, with the consent of the tenant, can carry out the urgent remedial works and seek to recover the costs from the landlord. The local authority is required to give the tenant 48 hours’ notice of the works commencing and they have to instruct a suitably competent person to carry out the works.
What are the penalties for non-compliance by the landlord?
If the local authority finds that a landlord is in breach of their duties under the Regulations, then they do have the ability to impose a fine on the landlord of up to £30,000. It is therefore important that landlords can show they have taken all steps to carry out the inspection, provide the report to the tenant and take any necessary remedial action to protect them against receiving such a fine.
What rights of appeal does the landlord have?
The landlord has 21 days to make written representations to the local authority following service of a remedial notice and the intention to impose a financial penalty. Once the landlord has made written representations then the remedial notice is suspended until the local authority has considered the matter further. The local authority is required to notify the landlord within 7 days of making their decision.
The landlord has a further right of appeal if they are not satisfied with the local authority’s decision and this is to the First Tier Tribunal (Property Chamber). The landlord can appeal against:- a decision to take remedial action by the local authority with such application required to be made within 28 days of the date the remedial notice was served; a demand for costs where the local authority has carried out the remedial work; a decision by the local authority to take urgent remedial action with the application being made within 28 days from the day when the works started and where a financial penalty is to be imposed.
For any further information or to obtain advice as to landlord’s obligations please contact Sarah Woolnough on slw@furleypage.co.uk or 01227 763939.
