Electrical Safety Regulations Guidance

3rd June 2020 Commercial Litigation

On 1 June 2020 the Government published its guidance for landlords, tenants, and local authorities on the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020. These regulations come into effect on 1 July and apply to all new and renewed residential tenancies from 1 June 2020 and then pretty much all shorter residential tenancies from 1 April 2021. They require that all landlords get an electrical test of their fixed wiring, an obligation that previously only applied in HMO property.

Application

The new regulations apply to all new and renewed tenancies in the shorter residential sector from 1 June. This means all residential tenancies and licences in the private rented sector except lodger arrangements, long tenancies of over 7 years, and student halls of residence. So the regulations will cover ASTs, company lets, holiday lets, and licences to occupy. They will apply to anything granted after that date and any renewal of an existing tenancy for a new fixed term. If the tenancy is becoming periodic then they will also apply to any statutory periodic tenancy but not a tenancy which is becoming periodic because the tenancy agreement states it will continue that way.’

From 1 April 2021 the rules will apply to every residential tenancy, including those that are ongoing.

Duties

The obligation on landlord is to obtain an electrical safety check from an approved professional every 5 years at a maximum (or less if a report states that a more frequent check is needed).

If the property passes this check the landlord needs to give every existing tenant a copy of the report within 28 days of the report being done, given any new tenant a copy of the report before they move in, and keep the report for their records. Prospective tenants can also seek a copy of the report and this must be provided within 28 days of that request.

The local authority can request a copy of the report from the landlord and if they do so it must be provided within 7 days.

If the property does not pass then the landlord must give the tenants copies of the failing report within 28 days as for a passed report. However, they must also, within 28 days (or less if the report gives a shorter deadline), get all necessary remedial work done and obtain a written confirmation that the standards are now met. They must then provide the tenants with this written confirmation (along with the original failed report) within another 28 days and also provide the local authority with the written confirmation along with the original failed report in the same timeframe.

Standards

The standard required is the 18th edition of the Wiring Regulations. A report can either pass an installation or give a series of fail codes which are C1, C2, FI, and C3. A C3 code is only a recommendation and so imposes no obligation to do works. It is, in the sense that it requires no work, a pass. An Fi code requires further investigation promptly and will need to be actions. A C1 or C2 code means the installation is actually or potentially dangerous respectively and work is needed. The government has indicated that if the installation is new and in good condition then failures of the 18th edition will be minor and should normally have a C3 code placed on them but it remains to be seen what will actually happen.

Enforcement

If a local authority thinks that a property is not up to standard they can ask to see its report or if they have reasonable grounds to believe that the landlord is in breach then they can serve a remedial action notice. This gives the landlord 28 days to take the actions specified in the notice. The landlord can respond to such a notice within 21 days of it being issued. At that point the notice is suspended and the 28 day clock stops running. The local authority then has 7 days to respond to any representations and if the notice is confirmed the clock starts running again. So, if a landlord made representations on day 21, there would be a suspension until day 28 maximum, the local authority would respond on or before that date, and the clock would then run for a maximum of a further 7 days until day 35. Remedial notices cannot themselves be appealed.

If the landlord does not comply with a remedial notice the local authority can then take action itself and recover the cost from the landlord. The decision to take action and the level of costs are both appealable to the First Tier Tribunal (FTT).

The local authority can issue a penalty for a breach of any of the landlord’s duties under the regulations of up to £30,000. In keeping with other legislation this involves serving a notice of intention to penalise, allowing for representations, serving a final notice, and then an appeal process operating via the FTT.

Access

This is a bit of a problem. The guidance states that landlords who cannot get access because their tenants will not let them in are not in breach of a remedial notice. This is quite true but largely irrelevant. If a landlord cannot get in themselves then they would probably be better off to be in breach of the remedial notice as the local authority will then have to do the work themselves and will have to sort out the access. But not being allowed access is not a defence to any form of civil penalty. The penalty process deals with the landlord’s obligation to have a check in the first place, not whether they are in compliance with a remedial notice. Indeed, a local authority can serve a remedial notice and also penalise a landlord for putting them in that position. There are no statutory defences at all to a penalty notice such as not being able to get in and so it is down to the discretion of the local authority. So if a landlord cannot get in they are entirely at the mercy of the local authority and whatever enforcement policy it has seen fit to draw up.

Conclusion

This will involve landlords in a lot of work. Time is short to get all these checks done and made shorter by the problems obtaining property access at the moment. Landlords should not delay as this situation will only get worse as next April approaches.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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