New electrical checks and safety standards for Landlords

by Property 118

8:59 AM, 15th January 2020
About 7 months ago

New electrical checks and safety standards for Landlords

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New electrical checks and safety standards for Landlords

The Ministry of Housing Communities and local government has written draft legislation proposed to come into force 1st June 2020 titled ‘The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020’ Click here.

Landlords will need to ensure that the electrical safety standards are met  and ensure every electrical installation is inspected and tested at regular intervals of no more than 5 year by a qualified person

First inspection and testing must be carried out before the tenancy commences or by 1st April 2021 in relation to an existing specified tenancy.

Financial penalties faced by landlords for a breach of the above regulations will be a maximum of £30,000

This will need to be passed by the House of Commons and the Lords, but with the new government majority is unlikely to meet much resistance.

David Cox, Chief Executive, ARLA Propertymark commented:

“We are supportive of this concept and believe it will create a level playing field for all agents and landlords as well as ensuring improved safety standards for tenants. Mandating  electrical testing should have a limited impact on good professional landlords and agents in the market, many of whom already voluntarily undertake these inspections. We did raise concerns about the number of engineers available to undertake these reports by the April 2021 deadline but have received assurances from MHCLG about capacity in the supply chain.”

Duties of private landlords in relation to electrical installations

3.—(1) A private landlord(7) who grants or intends to grant a specified tenancy must—

(a)ensure that the electrical safety standards are met during any period when the residential premises(8) are occupied under a specified tenancy;

(b)ensure every electrical installation in the residential premises is inspected and tested at regular intervals by a qualified person; and

(c)ensure the first inspection and testing is carried out—

(i)before the tenancy commences in relation to a new specified tenancy; or

(ii)by 1st April 2021 in relation to an existing specified tenancy.

(2) For the purposes of sub-paragraph (1)(b) “at regular intervals” means—

(a)at intervals of no more than 5 years; or

(b)where the most recent report under sub-paragraph (3)(a) requires such inspection and testing to be at intervals of less than 5 years, at the intervals specified in that report.

(3) Following the inspection and testing required under sub-paragraphs (1)(b) and (c) a private landlord must—

(a)obtain a report from the person conducting that inspection and test, which gives the results of the inspection and test and the date of the next inspection and test;

(b)supply a copy of that report to each existing tenant of the residential premises within 28 days of the inspection and test;

(c)supply a copy of that report to the local housing authority within 7 days of receiving a request in writing for it from that authority;

(d)retain a copy of that report until the next inspection and test is due and supply a copy to the person carrying out the next inspection and test; and

(e)supply a copy of the most recent report to—

(i)any new tenant of the specified tenancy to which the report relates before that tenant occupies those premises; and

(ii)any prospective tenant within 28 days of receiving a request in writing for it from that prospective tenant.

(4) Where a report under sub-paragraph (3)(a) indicates that a private landlord is or is potentially in breach of the duty under sub-paragraph (1)(a) and the report requires the private landlord to undertake further investigative or remedial work, the private landlord must ensure that further investigative or remedial work is carried out by a qualified person within—

(a)28 days; or

(b)the period specified in the report if less than 28 days,

starting with the date of the inspection and testing.

(5) Where paragraph (4) applies, a private landlord must—

(a)obtain written confirmation from a qualified person that the further investigative or remedial work has been carried out and that—

(i)the electrical safety standards are met; or

(ii)further investigative or remedial work is required;

(b)supply that written confirmation, together with a copy of the report under sub-paragraph (3)(a) which required the further investigative or remedial work to each existing tenant of the residential premises within 28 days of completion of the further investigative or remedial work; and

(c)supply that written confirmation, together with a copy of the report under sub-paragraph (3)(a) which required the further investigative or remedial work to the local housing authority within 28 days of completion of the further investigative or remedial work.

(6) Where further investigative work is carried out in accordance with paragraph (4) and the outcome of that further investigative work is that further investigative or remedial work is required, the private landlord must repeat the steps in paragraphs (4) and (5) in respect of that further investigative or remedial work.

(7) For the purposes of sub-paragraph (3)(e)(ii) a person is a prospective tenant in relation to residential premises if that person—

(a)requests any information about the premises from the prospective landlord for the purpose of deciding whether to rent those premises;

(b)makes a request to view the premises for the purpose of deciding whether to rent those premises; or

(c)makes an offer, whether oral or written, to rent those premises.

Remedial action

Duty of local housing authority to serve a remedial notice

4.—(1) Where a local housing authority has reasonable grounds to believe that, in relation to residential premises situated within its area, a private landlord is in breach of one or more of the duties under regulation 3(1)(a), (1)(b), (1)(c), (4) and (6), and the most recent report under regulation 3(3) does not indicate that urgent remedial action is required, the authority must serve a remedial notice on the private landlord.

(2) A remedial notice must—

(a)specify the premises to which the notice relates;

(b)specify the duty or duties that the local housing authority considers the private landlord has failed to comply with;

(c)specify the remedial action the local housing authority considers should be taken;

(d)require the private landlord to take that action within 28 days beginning with the day on which the notice is served;

(e)explain that the private landlord is entitled to make written representations against the notice within 21 days beginning with the day on which the notice is served;

(f)specify the person to whom, and the address (including if appropriate any email address) to which, any representations may be sent; and

(g)explain the effect of regulations 11 and 12, including the maximum financial penalty which a local housing authority may impose.

(3) The local housing authority must serve a remedial notice within 21 days beginning with the day on which the authority decides it has reasonable grounds under paragraph (1).

(4) The local housing authority must consider any representations made under paragraph (2).

(5) Where a private landlord makes written representations the remedial notice is suspended until the local housing authority has complied with paragraphs (4) and (6).

(6) The local housing authority must—

(a)inform the private landlord in writing of the outcome of the consideration under paragraph (4) within 7 days beginning with the day on which the period under sub-paragraph (2)(e) expires; and

(b)where the outcome of the consideration under paragraph (4) is to confirm the remedial notice, confirm that notice and inform the private landlord in writing that the remedial notice is confirmed and the suspension under paragraph (5) ceases to have effect.

(7) The local housing authority may withdraw the remedial notice at any time.
Duty of private landlord to comply with a remedial notice

5.—(1) Where a remedial notice is served on a private landlord, the private landlord must take the remedial action specified in the notice within—

(a)where no representations are made under regulation 4(2) and the remedial notice is not withdrawn, the period specified in regulation 4(2)(d); or

(b)where representations are made under regulation 4(2) and the outcome of the consideration under regulation 4(4) is to confirm the remedial notice, 21 days from the day on which the private landlord is informed that the suspension under regulation 4(5) ceases to have effect.

(2) A private landlord is not to be taken to be in breach of the duty under paragraph (1) if the private landlord can show they have taken all reasonable steps to comply with that duty.

(3) For the purposes of paragraph (2), where a private landlord is prevented from entering the residential premises to which the duty under paragraph (1) relates by the tenant or tenants of those premises, the private landlord will not be considered to have failed to have taken all reasonable steps to comply with the duty under paragraph (1) solely by reason of a failure to bring legal proceedings with a view to securing entry to the premises.
Power of local housing authority to arrange remedial action

6.—(1) Where a local housing authority is satisfied, on the balance of probabilities, that a private landlord on whom it has served a remedial notice is in breach of the duty under regulation 5(1), the authority may, with the consent of the tenant or tenants of the premises in relation to which the remedial action is to be taken, arrange for an authorised person to enter those premises to take the remedial action specified in the remedial notice.

(2) Before the remedial action is taken the local housing authority must serve a notice on the private landlord specifying—

(a)the premises in relation to which the remedial action is to be taken by the authorised person under paragraph (1) and the nature of that remedial action;

(b)the power under which the remedial action is to be taken by the authorised person in paragraph (1);

(c)the date when the remedial action will be taken by the authorised person; and

(d)the right of appeal under regulation 7 against the decision of the authority to arrange for an authorised person to take the remedial action.

(3) The local housing authority must arrange for an authorised person to take the remedial action within 28 days of—

(a)the end of the notice period in regulation 7(3) where there is no appeal; or

(b)an appeal decision that confirms or varies the decision of the local housing authority where there is an appeal.

(4) An authorised person must—

(a)give not less than 48 hours’ notice of the remedial action to the tenant or tenants of the residential premises on which it is to be taken; and

(b)if required to do so by or on behalf of the private landlord or tenant or tenants, produce evidence of identity and authority.

Financial penalties for breach of duties

11.—(1) Where a local housing authority is satisfied, beyond reasonable doubt, that a private landlord has breached a duty under regulation 3, the authority may impose a financial penalty (or more than one penalty in the event of a continuing failure) in respect of the breach.

(2) A financial penalty—

(a)may be of such amount as the authority imposing it determines; but

(b)must not exceed £30,000.



Comments

Beaver

13:55 PM, 23rd January 2020
About 7 months ago

Reply to the comment left by Chris Harris at 23/01/2020 - 12:53
As I read the helpful link posted by Seething Landlord, the guidance memorandum tells you that if you find a problem as a landlord you would have 28 days in which to get the problem fixed. Probably if all that you had to do was to get a new consumer unit you'd be able to find someone in that time who could do it for you (assuming that the tenant allowed you access to the property). However, a friend of mine wanted a plumber to come and fix his radiators before Christmas; the plumber said he'd come and take a look at it in February but he didn't know he'd be able to fix it in February, and he didn't have time to look before February.

Rob Crawford's post indicates that he reads the guidance as saying that you would not necessarily have to rewire an old property as a consequence of the proposed changes. But, if you found a problem that you couldn't be sure of fixing within 28 days you would probably want to do the work whilst the property was untenanted.

Seething Landlord

17:20 PM, 23rd January 2020
About 7 months ago

Reply to the comment left by Rob Crawford at 23/01/2020 - 12:14
Rob, I am afraid that you have misquoted the Regulations. The words "in compliance with the 18th edition wiring regulations" do not appear, all that they say about testing is that a landlord must "ensure every electrical installation in the residential premises is inspected and tested at regular intervals by a qualified person".

The purpose of the inspection must be to confirm compliance with the requirements of the Regulations, which are to "ensure that the electrical safety standards are met". If not, it would be a pointless exercise. The responsibility of the landlord is extended to an infinite degree by the addition of the words "during any period when the residential premises are occupied under a specified tenancy", which imposes strict liability on the landlord throughout the tenancy.

“electrical safety standards” means the standards for electrical installations in the eighteenth edition of the Wiring Regulations".

Had the intention been to require testing in accordance with Chapter 65 of the Wiring Regulations it would have been a simple enough matter to word the Regulations to achieve this, but the draftsman chose not to do so and as with all legislation the Regulations will be interpreted strictly in accordance with the precise wording.

Seething Landlord

15:04 PM, 24th January 2020
About 7 months ago

Based on my reading of the Explanatory Memorandum and the Draft Regulations I have sent the following email to MCHLG (still awaiting their response) in the hope that they will either think again or be able to reassure me that I have got it wrong. I will post their reply if/when I receive it.

“The draft regulations stipulate that a private landlord must ensure that the standards for electrical installations in the eighteenth edition of the Wiring Regulations are met during any period when the residential premises are occupied under a specified tenancy.

The Regulations have been drafted in such a way that they will potentially give rise to consequences that I assume are unintended. As a landlord I have the following concerns and should appreciate your comments and answers to my questions:

1. Inspections carried out before 1st January 2019 do not confirm compliance with the 18th edition but are based on earlier editions so will need to be repeated before the date when the Regulations apply.
2. The Regulations impose an on-going requirement to meet the standards in the 18th edition so if it is amended there will be an immediate need to incorporate the changes. When the 18th edition is superseded privately rented property will still have to comply with it, unless it is the intention to amend the Regulations to require compliance with the new standards. If that is the case we will have to upgrade each time the standards are amended or revised. If not, we will not be permitted to have any work done in compliance with the new standards but will have to insist on the electrician working to outdated standards. Does this make any sense at all?
3. Wiring installed before 1st January 2019 (or possibly July 2018) will probably not meet the 18th edition standards so will need to be upgraded – there is no provision for Code C3 which under the current inspection regime is used when a particular feature of the installation does not meet current standards but is considered safe to be left as it is.
4. Some features which do not “meet” the current standards, such as wiring using the old colours do not have to be mentioned at the moment. This will no longer be the case, so many properties will require a complete re-wire even though there is no safety issue. This will in many cases require the landlord to take possession of the property under ground 6 of Section 8 of the Housing Act as such work involves major disruption and periods when the electricity supply has to be disconnected, so more homelessness for no good reason.
5. Plastic consumer units will need to be replaced with metal ones, even though I am led to believe that consideration is being given to reverting to plastic in the next issue of the Wiring Regulations. Why have the Draft Regulations not retained provision for code C3?
6. Electrical Installation Condition Reports (EICRs) based on inspections carried out after 1st January 2019 will be similarly invalid as they will have been prepared based on the current guidance – they will not therefore confirm that the standards in the 18th edition have been met because there will be no record of aspects that in exercise of the tester’s discretion have not been mentioned. A code C3 will become a requirement to upgrade.
7. All this makes a nonsense of Para 12.4 of the explanatory memorandum, which states that 78% of landlords already have electrical safety checks, so they will not be affected by this cost until they are due for a new Inspection, implying that this will be phased in over an extended period. In reality, all properties will require inspection before 1st April 2021, whether or not there is a current EICR.
8. Para 12.7 of the explanatory memorandum “There are also likely to be remedial costs associated with fixing any hazards identified in the electrical safety checks. These are not a direct impact of the legislation because landlords are already legally required to ensure there are no serious electrical hazards in their properties” is also extremely misleading and inaccurate – under the Draft Regulations landlords will be required to carry out major work to upgrade features that present no hazard at all and have happily been ignored or given a code C3 in the past. The costs incurred will be a very definite direct impact of the legislation.
9. Where are the electricians, qualified to as yet unspecified standards, to permit 4.6 million inspections (probably many more as this figure is several years out of date) and all the resulting remedial work to be carried out by April 2021? How are landlords expected to find them? Will there be a register that can be searched by location?
10. The Regulations say “qualified person” means a person competent to undertake the inspection and testing required under regulation 3(1) and any further investigative or remedial work in accordance with the electrical safety standards”. There is no reference in the Regulations to the “guidance” or “checklist” mentioned in paras 12.10 and 12.11 of the explanatory memorandum so they will have no statutory authority and competence will be a matter of fact to be determined in each case, giving rise to yet more confusion and uncertainty.
11. Why do the Regulations only apply to private landlords? Is the safety of tenants in Local Authority or Social Housing of less importance? The Fitness for Human Habitation Act applies to all tenures, why not these Regulations?”

Badger

15:33 PM, 24th January 2020
About 7 months ago

Reply to the comment left by Dylan Morris at 18/01/2020 - 04:32
"... to comply with Edition 18 the whole house will need rewiring..."

Nah.

The 18th edition allows for pre-existing wiring with the old colours.

Worst case would be *IF* you had modifications or additions done that introduced some new colour wiring it would be necessary to apply a sticker to the outside of the CU warning that two different colour schemes were present. (Although it has always been a source of considerable bemusement to me that people otherwise considered competent to perform work on your electrical installation need a sticker to tell them this!!! It's a bit like saying 'Warning: this book contains words!')

Badger

15:40 PM, 24th January 2020
About 7 months ago

Reply to the comment left by Southern Er at 18/01/2020 - 08:09
You do not need to sign up to one of the scams to be allowed to certify an installation.

You simply have to be competent / skilled and you would be judged so based on what you have said.

I looked into this a couple of years ago on my own behalf as a qualified time served (40+ years) electrical / electronics engineer as I was incensed at the suggestion that I might have to pay somebody else to certify my own work which, frankly, is done to a much higher standard than much of what some so-called qualified electricians produce.

Luke P

15:56 PM, 24th January 2020
About 7 months ago

Reply to the comment left by Badger at 24/01/2020 - 15:33
But wouldn't that attract a C3?

Judith Wordsworth

15:57 PM, 24th January 2020
About 7 months ago

If electrical items, including white goods, are owned by the tenant do I as Landlord have to get the items tested?
Or do they not need to be tested at all?

Badger

16:08 PM, 24th January 2020
About 7 months ago

Reply to the comment left by Luke P at 24/01/2020 - 15:56
Wouldn't what attract a C3?

Badger

16:11 PM, 24th January 2020
About 7 months ago

Reply to the comment left by Judith Wordsworth at 24/01/2020 - 15:57
Tenants are responsible for the electrical safety of their own equipment.

Although in practice I don't see how the chap(ess) doing the PAT testing is going to know that the toaster belongs to the tenant and not the landlord.

The additional costs of tenant gear getting inadvertently tested at the same time are going to be absolutely minimal though.

Luke P

16:30 PM, 24th January 2020
About 7 months ago

Reply to the comment left by Badger at 24/01/2020 - 16:08
Non-eighteenth edition/two colour types wiring.

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