Proposed Changes to Landlords’ Duties under the Gas Safety Regulations

In January the Health and Safety Executive (HSE) consulted on amending the Gas Safety (Installation and Use) Regulations 1998 (GSIUR) and these changes are now expected to come into force next year. The amendments do not substantively change landlords’ responsibilities regarding gas safety rather they are designed to make it easier for landlords to comply with their current duties. The consultation document can be accessed here.

Regulation 36 of the GSIUR sets out the responsibilities of landlords. These include a duty:

• to ensure that gas fittings and flues are maintained in a safe condition; and
• to ensure that an annual gas safety check is carried out on each gas appliance/flue by a Gas Safe registered engineer.

Once a gas safety record is issued it is valid for a period of 12 months. It is a criminal offence not to comply with the gas safety requirements and non-compliant landlords can be prosecuted and fined or even imprisoned. Furthermore, there are now restrictions on a landlord’s ability to regain possession of a property let on an assured shorthold tenancy where the tenant has not been given a gas safety certificate. This is because a section 21 notice cannot be given in these circumstances.

The proposed changes will amend Regulation 36 of GSIUR in the following ways:

• Clarify that only gas safety defects should be recorded on the gas safety record; and
• Introduce flexibility in the timing of landlords’ annual gas safety checks

The first amendment is a minor change to the wording of the regulations to clarify that only gas safety defects need to be recorded on a gas safety record.

The second amendment is more significant. Currently landlords are required to carry out gas safety checks at intervals of no more than 12 months since the last check. To ensure that a check is completed before the previous record expires many landlords carry out renewal checks early, for example, at 10-11 months from the last check rather than just before the 12-month expiry limit. A new record is then issued from the date of the check bringing the expiry date of the new record forward and shortening the safety check cycle each year. The result is that over a period of 9 years a landlord may end up carrying out 10 checks instead of 9.

The amendments seek to address this problem by giving landlords a window between 10-12 months after the last check in which to carry out a repeat check. Importantly, any check carried out within this window will be deemed to have been completed on the last day before the previous check expires. This means a landlord can obtain a new gas safety record up to two months before the current record expires and keep the same expiry date. On some occasions, therefore, the period between gas safety checks could be as long as 14 months instead of the usual 12 months.

For example, once the amendments are in force, a landlord whose gas safety record expires on 1 September will be able to carry out a check from 1 July the following year and keep the same expiry date of 1 September. The system is similar to that used in vehicle MOT tests. If a check is carried out earlier than 10 months from the previous check than this will re-set the clock and the expiry date will be 12 months from the date of the last check.

The aim of the change is to give landlords more flexibility and make it easier for them to comply with their duties particularly in cases where access is an issue. A landlord concerned about gaining entry to a property before the gas safety record expires can now start the process of arranging the check earlier without losing the original expiry date.

The changes are designed to help landlords but are not compulsory. Landlords do not have to take advantage of the amendments and can continue with their current arrangements for carrying out gas safety checks provided these meet the minimum requirements set out in the regulations. Landlords who do take advantage of the new flexibility will need to ensure that they retain records to demonstrate that checks have been carried out within the required timeframes.

It is important to note that the gas safety regulations do not give landlords the power to enter a property to carry out a gas safety check if the tenant is refusing access to the property. The rights of landlords to enter a tenanted property to carry out repairs and maintenance are usually set out in the tenancy agreement although there are also terms relating to access implied into certain tenancies whether the agreement is in writing or not.

The HSE requires landlords to take ‘all reasonable steps’ to carry out a gas safety check. They recommend that a landlord takes the following action:

• Leave a notice at the property stating that an attempt was made to carry out a gas safety check and leave contact details so the tenant knows who to contact;
• Write to the tenant explaining that it is a legal requirement to carry out a check and it is for the tenant’s own safety;
• Give the tenant the opportunity to arrange an appointment at a time of their choosing;
• Ensure that repeated attempts have been made to carry out the check and retain records of all correspondence with the tenant.

Landlords are strictly prohibited from using force to gain entry to a tenant’s property. A landlord who cannot obtain access may need to consider whether it is necessary to apply to Court for an injunction to gain entry to the property. Tenants should be very careful about obstructing a landlord’s right of access. Not only could such action lead to a claim for an injunction against the tenant but the landlord may commence possession proceedings for breach of tenancy.

The above changes to the GSIUR are expected to come into force in April 2018 and the HSE’s updated GSIUR Approved Code of Practice should be available early next year.

On a separate note the contract with Gas Safe Register ends in 2019. The HSE is expected to conduct a brief tender for the replacement of that contract in 2018. It is unclear who will apply. While it is important to have transparency in procurement it will annoy many landlords and agents to have the brand name of the relevant gas safety organisation potentially changing in 2019. There is also a risk that it will confuse tenants and increase the risk of rogue operators infiltrating the sector.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*