Electrical safety standards to apply to all private landlords in England from 1 April 2021

From 1 April 2021 The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 (“the Regulations”) will apply to all private sector landlords in England. These Regulations came into force on 1 June last year and since then have applied to all new relevant tenancies from 1 July 2020. The transitional arrangements in the Regulations are about to come to an end meaning that from 1 April 2021 the Regulations will apply to all relevant tenancies in existence. This blogpost provides a reminder of landlord’s duties under the Regulations and the consequences of non-compliance.

What types of tenancies do they apply to?

The Regulations apply to ‘specified tenancies’. These are defined as a tenancy of residential premises in England which grants one or more persons the right to occupy all or part of the premises as their only or main residence, provides for payment of rent (whether or not at a market rate) and is not a tenancy that falls within one of the exceptions in the Regulations. The exceptions include social housing tenancies, tenancies where the occupier shares accommodation with the landlord or a member of the landlord’s family (lodger arrangements), leases of more than 7 years, students halls of residence, hostels, refuges and care homes.

Therefore the Regulations apply to all tenancies in the private rented sector including assured shorthold tenancies and Rent Act 1977 tenancies. They also apply to licences to occupy.

When do the Regulations apply?

The Regulations already apply to any tenancy granted on or after 1 June 2020. From 1 April 2021 they will apply to all tenancies that fall within the above categories that are already in existence. This means that all private landlords will need to ensure they comply by this date.

What are the duties on landlords?

The Regulations impose the following duties on landlords:

1. To ensure that electrical safety standards are met during any period when residential premises are occupied under one of the above tenancies;
2. To ensure every electrical installation in residential premises is inspected and tested at regular intervals of not more than 5 years by a qualified person; and
3. To ensure the first inspection and testing is carried out before the tenancy commences in relation to a new tenancy (those granted on or after 1 June 2020) and by 1 April 2021 in relation to existing tenancies.

Following the inspection and testing the landlord is required to:

• Obtain a report from them person conducting the test which sets out the results and the date the next inspection is due;
• Supply a copy of the report to each existing tenant within 28 days of the inspection and test;
• Supply a copy of the report to the local authority within 7 days of receiving a request in writing from the local authority;
• Retain a copy of the report until the next inspection date and supply a copy to the person carrying out the next test; and
• Supply a copy of the most recent report to any new tenant before the tenant occupies the property and any prospective tenant within 28 days of receiving a request in writing.

Usually the report will be an Electrical Condition and Installation Report (‘EICR’). This will set out the results of the inspection including whether the installation is satisfactory or unsatisfactory, any remedial work required and the date the next inspection is due. Further information on EICRs and their contents can be found on the Electrical Safety First website.

What are the required electrical safety standards?

The required safety standards are the standards for electrical installations in the 18^th Edition of the Wiring Regulations. These are also known as British Standard BS 7671. The Regulations are published by the Institution of Engineering and Technology and set out the current standard for electrical installations in the UK. The 18^th Edition came into effect in January 2019 replacing the 17^th Edition.

It is important to note that an installation can still be deemed safe and receive a satisfactory outcome on the report even if it does not meet all aspects of the 18^th Edition Wiring Regulations.

Who can carry out inspection and testing?

The inspection and testing must be carried out by qualified persons i.e. those who have the requisite qualifications covering the current wiring regulations and adequate insurance cover. The Government guidance on the Regulations sets out useful guidance on how landlords can find a qualified electrician. This includes the Registered Competent Person Electrical scheme or Electrical Safety Roundtable.

What needs to be checked?

The Regulations only require the fixed electrical installations to be checked, for example, sockets, light fittings and consumer units.

The Regulations do not apply to portable appliances. At present, there is no legal requirement on private landlords to carry out portable appliance testing (PAT) but this is recommended where the landlord supplies the electrical appliance. If the property requires a licence this may also be a condition of the licence.

What if the report shows further investigations or remedial work is required?

Where the report requires the landlord to undertake further investigative or remedial work the landlord must ensure that work is carried out by a qualified person within 28 days of the inspection or the period set out in the report if less than 28 days.

The landlord must then obtain written confirmation from that qualified person that the work has been carried out and the electrical safety standards are met or that further investigative or remedial work is required. The landlord must supply the written confirmation together with the report to each existing tenant and the local authority within 28 days of completion of the work.

Where the further investigative or remedial work requires the landlord to investigate or undertake even further remedial works the above steps need to be repeated in respect of that further work.

Tenants essentially need to be kept informed of the work required and what their landlord is doing to remedy any problems identified.

Sanctions for failure to comply

There are a number of sanctions if a landlord is in breach of the duties under the Regulations. These include:

• The local authority can serve a remedial notice on the landlord requiring the landlord to take remedial action within 28 days. This is in circumstances where the remedial action required is not urgent. The landlord has the right to make written representations in response.
• Where a landlord fails to comply with a remedial notice the local authority may, with the consent of the tenant, arrange for remedial action to be taken.
• The local authority can recover costs reasonably incurred in taking action from the landlord.
• Where urgent remedial action is required the local authority can arrange this, with the consent of and on 48 hours’ notice, to the tenant. The local authority can also seek to recover its costs from the landlord.
• Where a local authority is satisfied beyond reasonable doubt that a landlord has breached its duties in the Regulations it may impose a financial penalty of up to £30,000. Local authorities are expected to have policies in place documenting how they will determine the appropriate penalty level.

A landlord has the right to appeal against the local authority’s decisions to carry out works, recover costs and impose financial penalties. Appeals are made to the First-tier Tribunal (Property Chamber).

What if a landlord cannot access the Property to carry out remedial works?

This is likely to be a more common issue at present with tenants self-isolating due to the Coronavirus pandemic. A landlord will not be in breach of the Regulations if they can show they have taken all reasonable steps to comply. The Government guidance recommends that landlords keep records of their communications with their tenants and electricians to show that they have attempted to carry out the work. A landlord is not required to take legal proceedings against their tenant to demonstrate they have taken all reasonable steps.

Are there any special rules that apply to HMOs?

The Regulations apply to HMOs. HMO landlords’ duties in respect of electrical safety used to be covered by the HMO Management Regulations 2006. The Regulations have now replaced these requirements so that the same duties apply to both HMO and non-HMO landlords.

If the landlord is required to obtain a property licence then there will be mandatory condition in the licence requiring every electrical installation to be in proper working order and safe for continued use.

Where can I find further guidance?

The Government has issued useful guidance for landlords which can be accessed here. There is also guidance for landlords on the Electrical Safety Roundtable website.

Conclusion

The Regulations form part of the Government’s commitment to improving standards in the private rented sector. They show that electrical safety is an issue to be taken seriously to ensure that tenants are able to live in safe and secure housing. Unlike gas safety, the Regulations do not link compliance with electrical safety duties with a landlord’s ability to serve a section 21 notice seeking possession. Therefore, despite the sanctions for non-compliance set out above, a failure to comply with the Regulations will not invalidate a section 21 notice. This does not mean that electrical safety should not be taken seriously and it remains to be seen whether compliance with electrical safety duties will be linked to any new possession procedure that is established following the expected abolition of the section 21 regime.

*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.*