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spotlight on gas safety

10 November 2014

Gas Access Campaign rejected by Government

As reported in Inside Housing on 24 October 2014 a campaign by a coalition of 93 landlords calling for housing associations to have more powers to access homes for gas safety inspections was dismissed by the Government on the basis that it had not seen any hard evidence of a problem.

The Gas Access Campaign by Home Group, in collaboration with the Association of Gas Safety Managers, sought to give housing associations the same timely access as local authorities. Currently local authorities have the right to enter homes within their housing stock using a warrant obtained from a Magistrates Court. This can be applied for within 24 hours of the tenant refusing access. The Gas Access Campaign proposed amendments to the Gas Safety (Installation & Use) Regulations 1998 to provide a direct power of entry for Registered Providers.

The Inside Housing article noted Housing minister Brandon Lewis as commenting that it is already a "standard condition" of tenancies to allow access for gas servicing. A Department for Communities and Local Government spokesperson further commented that they had yet to see hard evidence "of why landlords are unable to exercise these contractual rights, especially given such checks are in tenants own interests". The spokesperson further commented that the government was actually "committed to scaling back powers of entry". To add extra pressure to the issue of gas safety, it is also reported that the English social housing regulator has been clamping down on gas safety breaches. The only three consumer complaint cases deemed serious enough to meet the new serious detriment test for intervention have all related to gas safety.

Gas safety inspections

Under the Gas Safety (Installation and Use) Regulations 1998 landlords are required to ensure that each and every fitting, appliance and flue to which that duty extends is checked for safety within 12 months of being installed and at intervals of not more than 12 months since it was last checked for safety.

Tenants may not allow access to properties for a number of reasons, such as if they have mental health issues, because they have incurred rent arrears or if they are undertaking illegal activity in their homes.

If a landlord does not carry out the gas safety inspection in accordance with the Regulations they are at risk of a possible Health and Safety Executive prosecution. There can also be serious potential problems, such as risk of carbon monoxide poisoning and gas explosions. Not only does this prevent a housing association from looking after the interests of their tenants, they may also face claims from both tenants and neighbours should such carbon monoxide poisoning or explosions occur. The leading case of Sykes -v- Harry [2001] EWCA Civ 167 established that if there is no evidence of the gas service, there is a presumption of liability if injury occurs even if the landlord was not on notice of there being any problem. There is also the practical implication of an increase in fuel poverty due to the inefficient running of gas appliances.

Options available to gain access

Whilst housing associations do not have the same rights as local authorities to obtain a warrant within 24 hours of a tenant refusing access, there are a number of options available to secure access:

1. Reminder letters It may be that a tenant simply did not receive the initial appointment letter or has simply misplaced it or overlooked the appointment date. Reminder letters to tenants have the advantage of being cheap and afford the tenant with an opportunity to cooperate. On the flip side, reminder letters can be ignored, the landlord is still exposed to HSE prosecution and the tenant is still exposed to the risk of carbon monoxide poisoning, gas explosions and fuel poverty.

2. Liaise with Tenancy Management team Information sharing is important and there is possibly a good reason why the tenant has not responded to the landlords correspondence, such as if the tenant has mental health issues. This is a good step to take before more draconian action is commenced. In these circumstances a home visit is recommended.

3. Enforce clause in tenancy agreement/apply for an injunction There should be a relevant clause in the tenancy agreement providing for access to be granted. This clause can be enforced in the County Court and is a pro-active step which can be used to defend any HSE prosecution. It also affords the tenant the opportunity to attend court and explain why access has not previously been granted. If the tenant subsequently breaches the Injunction Order by continuing to refuse or failing to give access, the landlord can then apply to the court to have the tenant committed to prison. Of course, there are costs implications in pursuing this route, and whilst a landlord may be successful in obtaining an order that the tenant pay their costs of the court proceedings, the reality of recovering any money from a tenant may be slim. There can also be possible delays in the court procedure as highlighted in the Gas Access Campaign discussed above.

4. Force entry Some social landlords force entry to properties in order to undertake the gas safety inspection. Whilst this may be quicker and cheaper than pursuing court action for an injunction with the option to possibly re-charge the tenant, this is certainly not a recommended course of action. Whilst such a landlord may be seeking to comply with their obligation to service the gas appliances it is a potential breach of a tenants human rights and there is no legal right to force access to a property, even if all other routes have been exhausted. Landlords who undertake such action are at risk of claims being brought against them by their tenants.

Conclusion

Whilst housing associations face continuing pressures to ensure compliance with their gas safety duties, the Government appears to be unwilling to consider providing any further assistance for associations dealing with problem tenants. Housing associations are therefore left with the current options available in seeking to meet their obligations, even if this means further costs and delays being incurred in pursuing court proceedings. Housing associations should therefore ensure that they have rigorous procedures in place for monitoring properties and impending dates for annual inspections. They should seek to ensure that reminder letters and consultation with any Tenancy Management teams takes place to pre-empt any avoidable subsequent access issues. Tenancy agreements should be reviewed to ensure they contain the relevant access clause. Forcing entry to a property is not advised and instead court proceedings to enforce the tenancy or to seek an injunction is recommended.

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