On 6 April 2018, the Gas Safety (Installation and Use) Regulations 1998 were amended with the new regulations allowing ‘flexibility’ for landlords when carrying out annual gas safety inspections. It’s important to note that these amendments do not change or relax a landlord’s obligations to carry out an annual gas safety inspection. They simply allow for the annual inspection to be carried out within a two month period prior to the expiry of the existing certificate, whilst retaining the existing expiry date.
By way of example:
- The appliance and flue was installed or last inspected on 6 April 2018
- The expiry of the certificate is 6 April 2019 the ‘deadline date’
- The landlord may carry out the inspection at any time from 6 February 2019 meaning that 10 months may only have elapsed since the last inspection
- Inspection takes place on 1 March 2019. This complies with the regulations and the deadline date of 6 April is retained meaning that the next inspection must take place before 6 April 2020.
Some tenants can be difficult to contact and unresponsive which often results in appointments being missed and/or cancelled resulting in additional work and costs with inspections often taking place at the ‘eleventh hour’ or in some cases after the gas safety certificate has expired. This new MOT like system allows for more flexibility for landlords so that the process of gaining entry to properties and carrying out inspections can start earlier to ensure that the inspection is completed before the deadline date.
Resetting the deadline date
Gas safety inspection carried out less than 10 months since the previous inspection
Where the inspection is carried out at less than 10 months after the previous inspection, this will ‘reset the clock’ and the new deadline date will be 12 months from the date of this latest inspection.
Gas safety inspection carried out after the preserved deadline date
Where the property remains tenanted it is an offence for no gas safety certificate to be in place. The deadline date will however be reset to 12 months from the date of this latest inspection.
Inspection carried out after the deadline date where the property was vacant when the previous certificate expired
Where the inspection takes place more than 12 months after the previous inspection, this will ‘reset the clock’ and the new deadline date will be 12 months from this latest inspection.
One-off flexibility to bring dates of safety checks on different gas appliances in the same property back into line
Paragraph 36(A)(2) of the amended regulations allows landlords a one-off flexibility to align the date of the annual inspection on one appliance with other appliances in a property. It can only be applied once to each appliance, and the maximum amount of time that the inspection can be extended is 2 months.
Failure to carry out annual gas safety inspections
Failure to carry out annual gas safety inspections is an offence prosecuted by the Health and Safety Executive (HSE). According to the HSE database of prosecutions a number of landlords have been prosecuted including the London Borough of Hammersmith and Fulham who in 2012 were fined £83,600.00 and ordered to pay costs of £15,553. In private landlord cases, landlords have been fined and received suspended prison sentences.
In the case of social landlords, there is also the question of the regulator who has found in a number of cases that failing to carry out annual inspections is a breach of the Homes standard and as a consequence there was potential for serious detriment to tenants.
There are of course cases where tenants are unresponsive, prove difficult to contact or simply refuse to grant access, but this does not exclude a landlord from the obligations. A failure to grant access is generally a breach of tenancy and a quick option available to landlords is to seek an injunction order compelling the tenant to grant access to the property. We act for a number of landlords seeking injunctions and often persuade the Court to grant lifetime of the tenancy injunctions so as not to have to return to Court each year.
Landlords will of course be aware that they should not enter a tenant’s property without consent, nor should they cap or shut off the gas supply. The regulator of social housing has previously indicated that social landlords should have policies and procedures in place to deal with gas safety including applying for injunctions where tenants fail to grant access and this is good advice to private landlords.
To successfully obtain an injunction landlords will need to prove to the Court that they have taken all reasonable steps to gain access to carry out the gas safety Inspection. The HSE suggest in their guidance that this could include leaving notices at the property following failed visits, writing to tenants explaining that it is a legal requirement to carry out the check for the tenants’ own safety and showing that repeated attempts were made to try and arrange an appointment.
Finally, the added flexibility allowed under the regulations is likely to result in zero tolerance for landlords who fail to carry out their obligations both in terms of the HSE prosecuting and the regulator of social housing.