Mandatory electrical safety checks for all landlords have been on the horizon for a long while.
Currently, though there is a legal requirement for landlords to carry out fixed electrical installation inspections on houses in multiple occupation only. An inspection is required every 5 years and must be given to the local authority within 7 days if requested.
All landlords of properties covered by the Landlord and Tenant Act 1985 must under section 11 keep installations for the supply of electricity in good repair and proper working order, though this does not specifically require inspections.
The Housing and Planning Act 2016 sections 122 and 123 are enabling powers allowing the Secretary of State to write regulations imposing duties on landlords to carry out checks on installations for the supply of electricity, fixtures, fittings and appliances. They also allow the Secretary of state to determine how and when checks should be carried out and indeed who is qualified to carry checks out. Section 123 allows for regulations relating to enforcement and penalties to be written.
Currently, there is a great deal of misinformation concerning these requirements and to add to the confusion industry bodies tend to recommend that as ‘best practice’ these checks should be carried out. Indeed the Royal Institution of Chartered Surveyors recommends five yearly checks in their private rented sector code of practice.
The consultation on electrical safety tests
The Electrical Standards Working Group concluded that there was a need to use the enabling powers but sought additional evidence through a consultation. The consultation entitled ‘Electrical Safety in the Private Rented Sector’ ran from mid-February to mid-April 2018. The working group made eight recommendations around the frequency and types of checks needed; the report and to whom a copy should be given; the phasing in of any new regulations and a scheme for recognising competent persons.
The consultation asked for response around these issues in the main although the Ministry of Communities and Local Government (MHCLG) also included questions concerning enforcement, penalties and additional checks.
The Government published their response to the consultation in January 2019 which identified that there had been 570 responses from a range of interested parties. By far the largest groups were landlords and electricians.
It recommends that;
- landlords would be required to carry out checks on a five yearly basis.
- the report is issued to the landlord with confirmation of remedial works completed
- the report be given to the tenant at the beginning of the tenancy
- the report be should be available to local authority upon request
- legislative requirements would be phased in with new tenancies complying in year one and existing tenancies in year two. Visual checks of the electrical installation would be considered as good practice at the change of tenancy.
Is PAT testing mandatory in rental property?
- PAT testing, visual check of appliances and installation of RCDs encouraged as best practice but not a legislative requirement and set out in any guidance
The response suggests by the way it is written that a copy of the report will need to be given at the start of each tenancy, but more details would be needed to know if they intend this to mean a renewal or possibly a statutory periodic tenancy. This is unlikely to be the intention and so we await the draft regulations for certainty.
Why would you give a copy of the same report to a tenant 6 months after you had already provided it? There is also a lack of clarity around the transitional period for existing tenancies. The response states that the duty would apply to existing tenancies in year two. Does this mean that existing tenancies should be compliant at the beginning of year two or the end of year two? Clearly, this is something to keep an eye on.
The recommendations not agreed by respondents were those concerning the Competent Person Scheme. Respondents disagreed with creating a scheme separate from existing building regulations or, any other scheme allowing the certification of competent persons. The Government response appears to recognise that introducing a further level of complexity would be too bureaucratic and instead will issue guidance determining who will be classed as competent and the qualifications required.
Will there be penalties or fines?
When it came to enforcement and penalties there was a mixed bag of results. There was agreement that the regulations be enforced by the local authority and that any money received from penalties should be kept by the local authority to fund future enforcement work.
The proposal that the landlord will be restricted from serving a section 21 for a failure to give the electrical inspection was not completely supported. Worryingly the Government is suggesting that a failure to give the inspection before the tenancy started, would stop a landlord serving a section 21. This would be tantamount to creating an assured tenancy as of course you can never go back in time and correct this initial mistake. A close eye needs to be kept on this in the draft regulations.
Where penalties are concerned the Government appear to be intent on applying ‘real penalties’. The respondents overwhelmingly backed remedial or improvement notices over financial penalties. The Government unsurprisingly prefer financial penalties and one might imagine these might fall in line with other civil penalties.
How quickly could this happen?
Ordinarily, regulations can simply be written by the Secretary of State. In this instance, the Government have said that the regulations will be both debated and be approved in both Houses of Parliament before they can be brought into force. It is evident that the present Government intend to bring in these regulations but have said they will only do it when Parliamentary time allows.
There does not seem to be a great deal of that available at the moment. Even when the legislation is passed there is some reassurance in that they have said that there will be a six month lead-in time before the new duty comes into force. This, of course, is a significant improvement on the few days the industry was given to comply with the Smoke and Carbon Monoxide Alarm (England) Regulations 2015.
Electrical Safety checks on installations in the private rented sector have been considered good practice for many years. Some letting agents have made the checks a requirement for landlords to have had carried out and remedial work attended to in order for them to let the
property. Those landlords will be reassured to understand that the Government have stated that their Electrical Installation Condition Report (EICR) will not need to be replaced for five years from the date it was undertaken.
Once the draft legislation is released, and eventually, the six month lead in time starts ticking down, then conceivably within two and half years four million homes or more will require a check carried out. There are simply insufficient electricians to carry out that amount of work and it may be those that are prepared to pay a higher price that will get their check done earliest. Those wishing to avoid the rush and the likely higher prices could consider getting the process started earlier than absolutely required.
The vast majority of fires and resultant deaths in homes are caused by electrical faults. Whilst mandatory electrical checks will add a further burden on hard-pressed landlords this is perhaps one bit of new legislation that will be welcomed to add a degree of certainty and result in a genuine improvement in the protection for private sector rented tenants. In addition to the fire, many people are injured by electrical accidents and it is in the landlord’s interest to keep the tenant fit and healthy and able to go to work in order to be able to pay the rent.